LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

WA Boat Purchase from Widow of Deceased Owner - Legal Issues?

Discussion in 'Wills and Estate Planning Law Forum' started by Shane Anderson, 1 July 2015.

  1. Shane Anderson

    Joined:
    1 July 2015
    Messages:
    4
    Likes Received:
    0
    I have signed a contract to purchase a boat, for which the registered owner is deceased. His widow has signed the contract.
    Do I need to somehow verify that she is legally able to sign for him?
    I don't have any reason to suspect any wrongdoing or deceit, but want to make sure that there aren't any loopholes that may cause issues.
     
  2. hlly

    hlly Well-Known Member

    Joined:
    12 August 2014
    Messages:
    57
    Likes Received:
    5
    The widow isn't able to sell his boat because it's not hers, and she can't sell it on his behalf. His property can only be dealt with in accordance with his will.

    If the vendor is the beneficiary of the boat under the deceased's unadministered estate, she is able to sell an equitable chose in action called a Livingstone right. This is a proprietary interest in the boat which precludes the vendor from acting otherwise than in accordance with the sale upon administration of the will.

    Be warned that this does not amount to full beneficial ownership of the boat. Just to give you one example, if the deceased had large debts, the executor of his estate might have to sell the boat to pay them off, and you wouldn't be able to stop that.

    So, depending on the terms of the contract of sale, you may now have a Livingstone right over the boat. You certainly don't own it, unless the vendor had full legal title over the boat already, in which case you wouldn't be posting this.
     
    Tim W likes this.
  3. Shane Anderson

    Joined:
    1 July 2015
    Messages:
    4
    Likes Received:
    0
    Thanks for the reply.

    The deceased passed away a few years ago, but I realise that may not mean anything when it comes to dealing with a deceased estate.

    So are there circumstances under which the widow can legally sell the boat? For example if she has enduring power of attorney, or the boat was rightfully benefited to her under his will? And if so, what needs to be done for me to verify that?

    The reason I don't suspect any wilful deceit is that, even though I didn't know him, the deceased was a friend of some of my friends and associates. Again, I realise that is no guarantee of anything, but it also makes the way I handle this somewhat delicate.

    Regards
     
  4. Shane Anderson

    Joined:
    1 July 2015
    Messages:
    4
    Likes Received:
    0
    OK I found the answer...

    Beneficiary of the will needs to have a Grant of Probate, or if there isn't a will then a Grant of Letter of Administration.

    There is a Grant of Probate so I'm all good.
     
  5. hlly

    hlly Well-Known Member

    Joined:
    12 August 2014
    Messages:
    57
    Likes Received:
    5
    This isn't true.

    At risk of repeating myself, power of attorney does not obtain here. The widow cannot deal with the unadministered estate of the deceased even with power of attorney.

    Sale of Goods Act 1923 (NSW) s 26(1). The only circumstance in which the widow can effectively dispose of the boat is if she has legal title to the boat. That is the nemo dat rule.
     
  6. Tim W

    Tim W Lawyer

    Joined:
    28 April 2014
    Messages:
    1,722
    Likes Received:
    402
    I will assume in this answer that you are in NSW.
    I will also assume that we are talking about a registerable vessel.
    1. Forget Power of Attorney - that only operates when the person is alive and is not relevant here.

    2. Do a PPSR check on the vessel yourself, before doing anything else.

    3. If the registered owner is deceased, then the boat may (still) be part of the estate.
      There will either be an Executor (if there is a will) or a Legal Personal Representative (if there is no will).

    4. It's possible that the widow is one or other of those things.
      Ask her. And I mean ask her, not her late husband's mate's mate.
      If the answer is not a simple "Yes I am" or "No, the executor is so-and-so",
      then don't buy the boat - yet.

    5. Make sure that it really is a Grant of Probate - because people use that term incorrectly, a lot.

    6. If it really is a Grant of Probate, then deal with the executor. Only.
      If there are Letters of Administration the deal with the Representative.

    7. If the widow inherited the boat through a will, then it's hers to sell,
      as long as she becomes the registered owner first.
      If, however it is the executor that is selling it, then, subject to the PPSR check
      (as above), you are good to go.
     
  7. Shane Anderson

    Joined:
    1 July 2015
    Messages:
    4
    Likes Received:
    0
    I'm in WA.

    The widow is the executor, and there is a Grant of Probate.
     

Share This Page

Loading...