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VIC De Facto Entitlement to Property?

Discussion in 'Family Law Forum' started by janb, 21 November 2014.

  1. janb

    janb Active Member

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    My parents were retired and had a large property. When my father was in his 70's, he left my mother for another woman who was married. He moved out and left my mother there, his new partner's husband moved out of their home and rented a flat until he went into residential aged care and died a short while later.

    My husband and I moved in with my mother to look after her until she passed away in 2000. Dad came back and sold the property, and due to an error in the wording on my mother's will, (she had wanted her share of the property and assets, to go to my sister and myself), my father inherited the entire property and investments ( inheritance). He then paid off the mortgage for his partner, renovated the house, purchased her a new car and trips overseas.

    There was some sort of agreement signed that stated the house was in her name but if anything should happen to her, dad could remain in the house. She has two daughters. My father is now in very bad health and is 90 years old, currently in respite care (where I work), as she is now unable to cope with him. I have no doubt that he will require full time residential aged care, he has Alzheimer's and heart and kidney problems. I do have medical and financial power of attorney which I have never needed to use.

    With the changes to aged care and more of a user pays system, it costs quite a bit to enter permanent care. I have no idea if he has any money left and whether he has an entitlement to a share of the property. They have been together approx. 18 years. Can you advise me please?
     
  2. Sarah J

    Sarah J Well-Known Member

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    What is your question exactly?

    Is it whether your father has any interest in the share of his partner's property? The one he helped pay off the mortgage and renovate?
     
  3. janb

    janb Active Member

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    Yes, the original property owned with my mother he sold after she died
     
  4. Sarah J

    Sarah J Well-Known Member

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    Did your father own the property with your mother as joint tenants or tenants in common?
     
  5. janb

    janb Active Member

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    Ok, it was 14 years ago when my mother passed away and my father, although he was no longer living there My mother's will stated that half of everything was to go to my sister and I, but that wording was a mistake on the will about joint tenants or tenants in common, and my father got everything. However, not sure that is relevant now? The house he paid off amongst other things mentioned belong to his de facto whom he has lived with for 18 years, and my question is, regardless of whatever agreement they made about him staying in the house if she happened to pass away, is he entitled to a share of that property. Also as i have financial power of attorney, should i talk to the bank about his finances?
     
  6. Sarah J

    Sarah J Well-Known Member

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    1. If your father made any payments toward his partner's house, there will be a resulting trust created which essentially means your father has an equitable beneficial interest in the property (typically proportional to how much he contributed). This is implied at law. Your father is entitled to part of the property. Do you have any documentation that evidences your father making payments toward the property?

    2. The resulting trust can be rebutted by the partner showing evidence that your father intended for her to keep all the interest in the property. So, if your father wrote down somewhere that he waived all his rights to the interest and that the partner shall have all interest free from any encumbrances, then there will be no resulting trust. Essentially, the payments are made as a "gift" and the courts will be skeptical of gifts and therefore, presume a resulting trust.

    3. Further, if your father and his partner married, then there will be no resulting trust under a doctrine called "presumption of advancement"

    4. You, or your father, should seek a court declaration to declare that your father has a resulting interest in the property and how much this is.

    5. Given they are de facto partners for more than 2 years, your father will likely be entitled to a share of her assets in the event they split. Should your father survive the partner and if he is not provided for in her will, he can contest the will and claim a share in her assets by virtue of his position as partner.

    6. Given that you have financial power of attorney, should should speak with his banks and figure out his financial position (e.g. what accounts he has and how much in each account) as well as determine what other assets he holds.
     

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