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 Drowninginferal

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

 

How to talk about your pregnancy at work

The workplace isn't always a friendly place for pregnant women. Yet working women inclined to conceal a pregnancy from prying coworkers may be better off opening up and carrying on, according to a new study.

Tell us your story to win!

To celebrate Mother's Day this year we are giving you the chance to win one of five great prizes simply by telling us your story.

Where to get help to help your baby sleep

There is so much pressure about having a baby who sleeps 'all night' , it's no wonder you worry about your baby if she wakes in the night.

Vintage baby names having a comeback

What makes some names have comebacks while others silently fade into oblivion? A few factors come into play.

When your partner doesn't want you to breastfeed

Dads can have many reasons for not wanting their partners to breastfeed their baby, but both parents should learn more about it before making a final decision.

Model mum Sarah Stage shares post-baby selfie

Most new mums would recoil at the thought, but Sarah Stage has shared a post-pregnancy selfie just four days after giving birth.

I'll admit it: I have last child parenting fatigue

If you're a new mum and feeling ignored by the older mum/the old hand/the has-been, please know, it's not you, it's me. Blame the last child parenting fatigue.

Exhaustion is not the same as tiredness

Having a new baby isn't tiring - it can be downright exhausting.

Five posterior babies, four home births

I was on a high. I'd done it all by myself with no help from anyone.

Mum's list of birthday gift demands goes viral

We're big fans of kids' birthday parties - but this is one bash we're glad we didn't get an invite to.

Kate Middleton to receive 'loyalty discount' for second birth

Everybody loves a bargain - including the Duchess of Cambridge.

Fish & chip shop owner's sad note goes viral

A lengthy note put on the window of a fish & chip shop has gone viral due to the writer's serious doubts about the romance of travel.

Pregnant women need good nutrition advice, not judgment

Pregnant women are under pressure to do all the "right things" to have a healthy child. It results in women feeling judged about their decisions.

When your child wants you to have another baby

Giving your child a sibling when you don't want to have another baby can be a complex issue.

William Tyrrell's mum speaks out: 'We hope he is still alive'

The mother of missing toddler William Tyrrell says she has a vision that somebody "picked him up and moved him on ... that's the only way ... to explain for him not to be there".

Family comes first for 23-year-old Tommy Connolly

Most 23-year-old blokes spend their hard earned cash on fun times with mates or romantic dinners with their girlfriend, but not Tommy Connolly.

Newborn all-girl quintuplets 'doing great'

The first all-female quintuplets born in the United States were delivered last week, at 28 weeks and two days.

Model mum's big baby silences critics

He may be less than a week old, but baby James Hunter has already helped his model mum silence her critics.

Jammy, Hula Hoop, Rage: Reddit reveals most unusual baby names

A recent Reddit thread has revealed some of the more creative names in the world.

Woman awakens from coma, learns she gave birth

A US woman awakened this week from a four-month-long coma that doctors had feared would be permanent and learned that she had given birth to a baby boy, according to her family.

'Give us a break': mum sent shocking letter over Facebook baby pics

Posting a lot of baby photos doesn't make you a bad person. It may make your Facebook feed a little irritating, but it doesn't make you a bad person.

In defense of the dads who do so much

It's time to shift the focus off what dads aren’t doing and shine it on what they are.

The modern cloth nappies too cute to cover up

If you're only just joining the modern cloth nappy movement, or would like to spruce up your collection, we have to introduce you to Designer Bums.

How breastfeeding can affect your libido

When you’ve just had a baby, having sex isn’t usually top priority. In fact, for a lot of women it rates about as appealing as changing another dirty nappy.

Should pregnant women be allowed to use 'parent and child' car parking spots?

Is it acceptable to use these car parking spots when pregnant? How many of us would admit to doing it?

Healthy baby from sperm taken 48 hours after a man died

Fertility doctors have described their "most extraordinary case" - creating a healthy baby from sperm taken 48 hours after a man had died.

Sign up to our 30 days of #PlayIQ challenge

Sign up to receive 30 amazing tips and ideas for play with baby during the month of April and submit a picture or tip on our social wall for a chance to win an amazing Fisher-Price prize pack.

 
Advertisement
 
Advertisement
 
 
 

What's hot on EB

Last chance to win a year's supply of toys

You have less than a week left to win your child one of five Fisher-Price toy packs valued at over $600 each - hurry, enter today!

Childcare is a big problem, but there's more to it

Let’s keep talking about these issues and not allow them to be put into a neat little box that’s labelled ‘Fix childcare and everything is solved’.

Pink's awesome response to body-shaming trolls

When trolls felt the need to comment on 35-year-old singer-songwriter Pink's weight, her answer was an awesome ode to body love.

Fertility clinic offers egg donors $5000

A national chain of fertility clinics is offering egg donors a $5000 payment to cover their expenses, a first for Australia which is raising concerns the money could act as an inducement.

Baby boy abandoned in India amid fresh surrogacy concerns

Australian officials could do nothing to stop an Australian couple from abandoning their baby son, born through surrogacy in India, after they decided they did not want to bring him to Australia.

Herd immunity and community responsibility: how free-riders can make kids suffer

Individual choice works for haircuts and handbags, but not for preventing infectious diseases that kill kids.

Photographer captures 'unexpected beauty' of birth

If there is one thing Leilani Rogers knows about childbirth, it is that no two deliveries are ever the same.

Expectations vs the reality of making a toddler's clothes

Note to self: less sewing, more life. Not the party dress, but the party. The toddler, as usual, has it all figured out.

Mum meets 'dead' daughter 49 years after birth

In 1965, Zella Jackson-Price was told her premature baby girl had died shortly after birth.

How pregnancy probiotics can help you and your baby

New research suggests that taking specific pregnancy probiotics could be the answer to a range of common pregnancy side effects.

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.

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.

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.

 

ENTER NOW!

Win a year's worth of toys

Last week to submit a picture of your baby at play for your chance to win. Visit the Play Wall to view our recent entries.

 
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.