Jump to content

Any Lawyers out there... I need help with something ASAP!
Please only answer if your a Lawyer.


  • Please log in to reply
16 replies to this topic

#1 sophie222

Posted 10 November 2012 - 08:32 AM

Hi,
    I am really hoping a lawyer may be able to give me some advice. In a nut shell-
My mum passed away 2 years ago. Im not sure what happened to her will, it was on her lap top.
My dad ended up being a complete ass selling all her stuff that us kids should have been given ect ect.

Anyway he didnt pay the morgage to their house was taken by the bank.
The house is about to go for Auction in a week from today.

I have only just been able to get a copy of her will (from her lap top) As he tried to do everything he could to stop us kids from seeing her will.
In it, it says something along the lines of "if the house sells my half is to go to my children"

So my question is this- Can we do anything now to stop Auction or get anything from it, now that the bank has taken the house ect....

Pls feel free to inbox me. Im in QLD.

Thank you in advance!!

#2 **Renz**

Posted 10 November 2012 - 08:38 AM

Unless its singed by a lawyer Im pretty sure its non void

#3 FomoJnr

Posted 10 November 2012 - 08:44 AM

Needs to have been signed by her, and done so in the presence of two witnesses.
There is no way to prove that document was created by your mother.

(Forgive me, I'm no lawyer, but my mum works for one and just had me do my own will)

#4 JRA

Posted 10 November 2012 - 08:45 AM

lilmummaszoo:  A will does not need to be signed by a lawyer, but it does need to be appropriately witnessed. I am not a lawyer therefore not answering your question OP, just correcting lilmummaszoo

#5 seaside_feral

Posted 10 November 2012 - 08:58 AM

I am a lawyer but I am in Victoria and wills / estates / property is not my area of specialty, so I am not going to give you any advice other than to speak to a lawyer in your state who is qualified to answer your questions - I would start by calling Queensland Legal Aid on 1300 65 11 88 for some general advice and referrals, or visit the Queensland Law Society page for a referral to a lawyer in your area - they have an online referral system so you can at least take some steps to find someone before the weekend ends & call them first thing Monday morning.
All the best OP.

#6 Sassy Dingo

Posted 10 November 2012 - 11:03 AM

Wills and probate is a specialist area and I have never dealt with it. However, the relevant legislation is the Succession Act 1981 which states the requirements of a will:

Succession Act 1981

10 How a will must be executed
(1) This section sets out the way a will must be executed.
(2) A will must be—
(a) in writing; and
(b) signed by—
(i) the testator; or
(ii) someone else, in the  presence of and at the
direction of the testator.
(3) The signature must be made or acknowledged by the testator
in the presence of 2 or more witnesses present at the same
time.
(4) At least 2 of the witnesses must attest and sign the will in the
presence of the testator, but not necessarily in the presence of
each other.
(5) However, none of the witnesses need to know that the
document attested and signed is a will.
(6) The signatures need not be at the foot of the will.
(7) The signature of the testator must be made with the intention
of executing the will.
(8) The signature of a person, other than the testator, made in the
presence of and at the direction of the testator must be made
with the intention of executing the will.
(9) A will need not have an attestation clause.
10) A person who can not see and attest that a testator has signed a
document may not act as a witness to a will.
11) If a testator purports to make an appointment by will in the
exercise of a power of appointment by will, the appointment is
not valid unless the will is executed under this section.
(12) If a power is conferred on a person to make an appointment by
will and the appointment must be executed in a particular way
or with a particular solemnity, the person may make the
appointment by a will that is executed under this section but is
not executed in the particular way or with the particular
solemnity.
(13) This section does  not apply to a will made under an order
under section 21.




#7 JustBeige

Posted 10 November 2012 - 11:06 AM

You need a lawyer OP.

If you are going to challenge her will etc then you need a lawyer that specialises in wills / estates.

#8 Mrs Dinosaurus

Posted 10 November 2012 - 11:11 AM

Agree - you need a lawyer. You have a week before the auction so you have time to see a lawyer and discuss your options. This is what need to do. Monday at the latest.

#9 drowninginlego

Posted 10 November 2012 - 11:17 AM

Correct me if I'm wrong, but if the bank has taken the house, chances are your late mum won't have a half to bequeath anymore.

#10 mommyoffour

Posted 10 November 2012 - 11:21 AM

In vic, if the house was a joint tenancy ownership reverts to the survivor. So, might not be something your mother could gift.
Also, in Vic, wills can be rectified even if not signed/witnessed. Not sure about Qld...
Get legal advice, OP.

#11 JRA

Posted 10 November 2012 - 11:24 AM

Just adding, banks repossessing houses is not that common. A mortgagees auction is not that common. As has been said get to a lawyer, presumably the bank owns the house now, not your mother or father, if it is a mortgagees auction.



#12 Feral*Spikey*

Posted 10 November 2012 - 11:28 AM

There are a couple of things that are worth asking about.

Who has the printed, signed version of her Will? Does her solicitor have that? Who was the executor of the estate - they may know where the will was kept. Also, there is (in some States) a Wills register that might be worth a look.

Second, although your mother may have 'intended' to give you a share in the property, she may not legally have been able to. If the property is in both names, and as joint-tenants, the property reverts solely to the property of the surviving tenant on the death of one of the joint-tenants. That would mean that the deceased person did not have a 'share' to give away, as the title is no longer 'theirs' because of the type of tenancy they chose. If the property was 'tenants-in-common', the estate laws would deal with how the share is passed on, as it doesn't immediately pass to the other tenant on the death of one. That being said, its very uncommon for the marital home to be anything other than a joint tenancy. If the property was in your dad's name, as used to be the case back in the dark ages (okay, 60s & 70s) when the husband usually was the 'owner' for the purposes of title deeds and mortgages, the treatment is to assume 'joint tenancy'.

The next thing you need to be aware of, is that you are NOT her next of kin for succession purposes. Her husband is. That's right, as children you are entitled to NOTHING until he dies, and then, only what you're allocated under his will, or through estate law. He is entitled to full use of all of his money, and his assets - including the house. And if that includes selling it, and spending every last dollar on himself, so be it.

I would suggest that if you really want the house, that you bid on it at auction. I rather doubt you have a claim of any kind - but you could see a lawyer who specialises in succession and estate planning to confirm this.

#13 sakura73

Posted 10 November 2012 - 12:29 PM

If the will wasn't signed then she may have been deemed to have died intestate (ie with no will) and her estate would go to her next of kin, who would be her husband, as PPs have said.

In Victoria (where I am) there can be avenues for applying to the court where there was no will or a will which did not reflect the dead person's intentions. But if the house was a joint tenancy then it will have gone to him automatically on her death.

Unless the house was 100% mortgaged there should be funds left over from the sale of the house by the bank, and those funds would be distributed in accordance with who was the owner of the house at the time of sale.

Get legal advice from an expert in wills. And soon! Good luck.

#14 Acidulous Osprey

Posted 10 November 2012 - 12:41 PM

in Qld we were told we could not leave our share of our house held as joint tenants to anyone except each other.  We were looking at doing it while trying to brainstorm the best structure for our family if I died.  Could not do it.

edited bc I used the wrong term original.gif

Edited by Balzac, 10 November 2012 - 12:58 PM.


#15 spersephone

Posted 10 November 2012 - 12:47 PM

Joint Tenants = property reverts to surviving party
Tenants in Common = each party has a share, and the share of the deceased reverts to whoever is entitled to it according to a will/estate

You need to check which it falls under, and you need to find out whether she had a will or not (officially).

It's possible the bank is exerting the right to a mortgagee auction because they're owed a substantial amount, but that doesn't mean they will receive 100% of the auction proceeds.

Good luck in finding out your rights.

#16 JRA

Posted 10 November 2012 - 01:05 PM

OP: I just had a thought, how do you know your father stopped payments. Did he tell you? or is it because it says mortgagees auction?

#17 Copacetic

Posted 10 November 2012 - 03:24 PM

OP, I have sent you a PM.




1 user(s) are reading this topic

0 members, 1 guests, 0 anonymous users

 

Special Ticket Offer, Save $8!

The Essential Baby & Toddler Show is back this April! Save $8 off the door price for a limited time only!

Finding baby name inspiration in unusual places

Sometimes the greatest baby name ideas come from the most unexpected places, as these EB members show.

The case for inducing at 37 weeks

While we often think of pregnancy as a 40 week affair, experts agree that 37 weeks is actually “full term". So is there an argument for inducing all births at 37 weeks?

Does controlled crying really work?

Controlled-crying techniques may help some babies sleep through the night, but for many exhausted new parents, it's just a recipe for more tears all round.

How I taught my infant to use a toilet

As people become more aware of these benefits, I hope more parents will practice this method, so we can cut down on nappies and improve baby bonding.

'I thought it was impossible': Emily Symons pregnant at 45

Aussie actress Emily Symons has announced she is pregnant with her first baby.

Shallow water blackout kills fit, healthy dad

A little girl will grow up without her father after the fit and healthy 34-year-old passed away while doing something he had practised his whole life.

Afternoon naps may be bad for toddlers' sleep

You could be doing yourself a disservice by encouraging your toddler to have an afternoon nap, according to new research.

Best gifts for newborns, new mums and christenings

We've compiled a guide to some of the most popular presents for newborns and new mums, and for christenings and naming days.

Jaime King to be a mum again

Actress Jaime King is pregnant with her second child, giving 16-month-old James a sibling.

Nannies should receive government funding

The Abbott government should extend funding to nannies, and direct childcare payments to low and middle income families, a landmark study on childcare has found. 

Common skin irritations in newborns (and how to treat them)

As many as one in two newborn babies suffer from skin irritations in their first few weeks. So what are the most common rashes and irritations to look out for?

10 wall decals for the nursery or playroom

Wall decals are the answer to creating a beautiful nursery or children's space without lifting a paint brush, a spirit level or even a hammer.

Preschooler walks 2.4km home alone

Three-year-old Cain Trainor headed off home after his first day at a new preschool without telling anyone.

Video: Why mums get nothing done

In spite of being in an almost constant state of motion while looking after the kids and trying to keep things together at home, it can seem as though parents have managed to get nothing on the to-do list done by the end of the day.

The middle name game

The middle name is no longer an afterthought, and parents' inspiration comes from many places.

Have a baby or your money back - but there's a catch

A new IVF scheme offers couples the chance to fall pregnant and give birth - or get their money back. But there's more to it than you might think.

A rare glimpse inside the womb

A baby born still inside the amniotic sac gave US doctors a rare glimpse at life inside the womb.

Battered mum forced to write to her attacker ex in jail

Three years ago Jason Hughes viciously attacked his ex-partner. Now she has to write to him three times a year.

Woman pleads not guilty to ultrasound scam

A West Australian woman will fight allegations that she scammed expectant mums by selling them fake ultrasound pictures of babies.

Download now: Essential Kids Activity Finder app

Got bored kids? Quickly find the best activities for kids wherever you are in Australia with the Essential Kids app.

 
Advertisement
 
Advertisement
 
 
 

What's hot on EB

Brain damaged mum receives compensation

A Sydney mother who suffered brain damage when she was hit by a car while pushing her newborn baby in a pram has reached a confidential out-of-court settlement with the driver's insurance company.

Indigenous midwives break down the barriers

A culturally sensitive midwifery service has gained the trust and respect of Aboriginal women.

The Katering Show's next big delivery

Most mums-to-be plan to take things easy and perhaps have a little break from work as the birth of their baby draws near. Not Kate McCartney.

53 creative pregnancy announcements

Announcing that you're expecting can be a time to express your creativity, sense of humour and imagination. Check out how other parents and parents-to-be have broken the news to friends and family.

Why I have mixed feelings about Cindy Crawford's leaked photo

Last week an un-retouched photo of model Cindy Crawford surfaced, showing the 48-year-old mother-of -two posing in underwear.

How to create a Peppa Pig pancake

Thought your toddler could not love pancakes any more than they already do? How about if the breakfast treat came in the shape of every two-year-old's favourite cartoon character?

'It's a little life, not a little loss': pregnancy after miscarriage

I thought I was never going to be able to have a successful pregnancy. I decided that I wasn't going to form an emotional attachment with this baby.

Bonds Baby Search 2015: what you need to know

February 18 marks the start of one of the most prolific annual baby competitions in Australia: the Bonds Baby Search. And this year is going to be more special than ever.

Who will manage your Facebook account when you're gone?

This is not something that people like to talk about, but Facebook has announced that it will grant users more control over what happens to their pages after they die.

Struggling mum of four wins $188 million

Mother of four Marie Holmes was financially struggling after quitting her jobs at Walmart and McDonald's in order to care for her children.

Pregnant obese women a 'relatively new problem', coroner hears

A first-time mother whose daughter died hours after her frightening birth insists she was never told of the risks of being obese and pregnant.

'I'm angry as hell': the story behind mum's passionate vaccination plea

She has labelled parents who do not vaccinate their children "misinformed imbeciles" - and for that, she makes no apologies.

IKEA hacks for the nursery and kids' rooms

Are you one of those that know the whole IKEA catalogue by heart? Love their stuff but want to personalise it? Here's some inspiration to help you realise the potential of IKEA furniture and fittings.

8 different kinds of tantrums

I never thought I’d say this, but for a brief moment last week, Kim Kardashian and I had something in common: both our kids had public tantrums.

Polycystic ovary syndrome: symptoms, treatment and your fertility

Polycystic ovary syndrome (PCOS) is the most common female hormonal condition, affecting roughly one in 12 Australian women.

What's the best position for giving birth?

If doing it on your back is out, what's the best position for labour and birth?

Wife forgives snake catcher husband for car surprise

With Valentine's Day coming up, Nat Gilbert could be forgiven for thinking her husband might be planning a surprise for her.

Kids who meet milestones at their own pace

We usually only hear the success stories: tales of the two-year-old who’s talking, running and completely toilet trained. But other stories need to be told too.

Ruby shines as Bonds Baby

Sarah Kiss has a word of advice for proud mums and dads who are keen to enter their babies in this year's Bonds Baby Search Competition - just have fun.

Why dads should go to sleep school

If your family needs to go to sleep school, go with them. You are part of that family and you are part of the solution.

36 baby names inspired by food and drinks

A French court may have ruled out Nutella as a baby name, but that doesn't have to stop you from taking inspiration from the supermarket (or bottle shop). See what parents in the US have chosen for their delicious little ones.

Clever breastfeeding products

Check out this range of products designed to help make your breastfeeding journey more enjoyable, manageable and convenient.

 

Win a KitchenAid Mixer

Let's celebrate 300,000 fans on Facebook

To celebrate, and to thank our amazing fans, we?re giving away a KitchenAid Artisan Tilt-Head Stand Mixer.

 
Advertisement
 
 
Essential Baby and Essential Kids is the place to find parenting information and parenting support relating to conception, pregnancy, birth, babies, toddlers, kids, maternity, family budgeting, family travel, nutrition and wellbeing, family entertainment, kids entertainment, tips for the family home, child-friendly recipes and parenting. Try our pregnancy due date calculator to determine your due date, or our ovulation calculator to predict ovulation and your fertile period. Our pregnancy week by week guide shows your baby's stages of development. Access our very active mum's discussion groups in the Essential Baby forums or the Essential Kids forums to talk to mums about conception, pregnancy, birth, babies, toddlers, kids and parenting lifestyle. Essential Baby also offers a baby names database of more than 22,000 baby names, popular baby names, boys' names, girls' names and baby names advice in our baby names forum. Essential Kids features a range of free printable worksheets for kids from preschool years through to primary school years. For the latest baby clothes, maternity clothes, maternity accessories, toddler products, kids toys and kids clothing, breastfeeding and other parenting resources, check out Essential Baby and Essential Kids.