NSW Issues with Transfer Of Property - What to Do?

Discussion in 'Wills and Estate Planning Law Forum' started by OffGreenFX, 15 August 2018.

  1. OffGreenFX

    OffGreenFX Member

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    I apologise for how long this piece is, but it is all factual. (I have changed the property values to not make the situation as obvious to anyone with a vested interest).

    In our case, my wife’s Grandfather 20 years ago left his property solely on his will to my wife's mother who looked after him while his other child was estranged. The executor he chose was my wife's father. This was 20 years ago when he still drove himself.

    My wife's mother also had a will which stated everything of her's was to go to my wife upon her own death. Obviously most people do not outlive their kids, so naturally when my wife's mum died unexpectedly before the grandfather, the grandfather went straight back to the same solicitor firm who did his will 20 years before and asked to leave the property to my wife as her mum was now deceased and he knew my wife would continue caring for him by cooking and cleaning like her mother had, and also drive him to his appointments and for groceries etc. like she had already been doing.

    The solicitor recommended to the grandfather that if he trusted my wife, it was beneficial to just transfer the property now to her rather than put it on the will, which is what he did. The solicitor interviewed the grandfather independently and asked questions to confirm he understood what he was doing. The will itself kept the same executor and the estranged daughter was left on it as before, with my wife being placed in place of her mother as a 50/50 share of anything in the estate. Obviously minus the property which had now been transferred to my wife, and was only left to my wife's mother in the previous will.

    There were no shoddy random lawyers, or change of executors, or sudden changes of wills just before death, or isolating him from friends or family he wants to see. We didn't live with him at the time and worked full time 12 hours a day until my wife managed to get reduced hours by cutting down to 4 days a week, so she had a full day to run errands for her grandfather and clean his house etc.

    My wife and I have cared for him the whole time since her mum died and my wife is his centrelink carer. It was only 2.5 years after all this happened that we agreed to sell both houses and move in together when we had our first child as it was too difficult to travel between 2 houses frequently with a child.

    This estranged daughter never said a word, offered to help in anyway or even contacted her father. This was until the daughter or one of her kids drove past and saw a for sale sign outside his house. We were then met with a torrent of abuse from the daughter and her kids, and had to attend the police station for assistance.

    My wife was defamed all over facebook, family members not even related to their side of the family were contacted and harassed, My wife was threatened with violence, the real estate agent selling the property was called and demanded to sell the property for at least a million dollars, this went on and on until my wife finally broke down and messaged telling one of them, that she was the grandfathers enduring power of attorney and guardian and she prohibited them from harassing her grandfather any further.

    The daughter then tried tried lodging a caveat on the property and was told there was no merit once her solicitor contacted our solicitor. The daughter then lodged a tribunal application to dispute the power of attorney. This was even though the power of attorney and enduring guardian was setup years after the property transfer, and was only setup as a result of the grandfathers sister passing away of a stroke and the grandfather not wanting his estranged daughter to have any say if he was on life support.

    My wife had never actually used the power of attorney or enduring guardian for anything at the point. The tribunal application form the daughter filled out was full of unfounded claims of manipulation and all topped off with her even getting her own fathers date of birth wrong. The daughter also claimed that the grandfathers phone number had been changed by my wife and therefore she could not call him, however she had written his phone number on the tribunal application which was still his active number.

    When we attended the tribunal over the phone, the grandfather had a lot of trouble hearing and the tribunal was postponed for him to appear in person. Later that night, we realised he did not seem himself and were worried about him as it was clear he was not handling the stress well of being forced into confrontation with his estranged daughter. We called an ambulance, and it turned out he had severe pneumonia.

    We were told he would likely not make it out of hospital, and would be in respite if he did, as the infection was so severe. He was in ICU and many relatives came to say their goodbyes. We still to this day believe this was all a result of the abuse and confrontation that the estranged daughter and her family placed on him.

    Miraculously, he pulled through, although we were advised to take him to a geriatrician to find out any cognitive impairment he may have been left with. He saw his same doctor who he had been seeing for at least 15 years and was the doctor who cleared him of having sound mind when the power of attorney was setup. The GP advised he had a mild cognitive impairment and not to attend the follow up face to face tribunal and put himself in a conflict situation, as it was not good for his health. The tribunal however, said the best chance of resolving the dispute was for the grandfather to attend and state his wishes.

    The grandfather proceeded to attend the tribunal and identified everyone in the room including relatives attending, and clearly understood why he was there. No evidence of anything untoward was seen and the daughter was encouraged to withdraw the application which she did. The daughter had made claims that she was prevented over the years from seeing the grandfather by my wife, which was easy to debunk when my wife did not even live with the grandfather and worked 12 hour days, 4 days a week. and plenty of other relatives and friends were frequently visiting the grandfather. This also included a nephew who would take the grandfather out twice a week.

    The grandfather was then asked at the tribunal his thoughts on the matter and whether he wanted a relationship with his daughter. He emphatically said NO and stated they had never been close. He also said my wife cared for him greatly and he was very happy living with her. The daughter and her kids huffed and puffed, threatened us with “calling the federal police” and going "to a real court" and then left. This was even though they stated on the letter they sent to the tribunal that they didn’t ever want the grandfathers money, only wanting to know he wasn’t being taken advantage of.

    This was the last we heard from her, almost a year ago now. Since then, the grandfather has been critically ill in hospital with another infection and has now been diagnosed by a geriatrician with mild dementia only a few months ago. The geriatrician told us there is no evidence to prove that he ever had this in the past and it was very likely caused by the recent illnesses and hospital stays he had. He was also extremely happy with the care we were giving the grandfather.

    It has now been 3.5 years since the grandfather transferred the property to my wife and we have now all been living in the new property for over a year. Recently I was reading articles about people contesting property transfers after someone passes away. We all moved in together and sold both our properties before we knew any of this clawback of transfer was even a possibility. To ensure we could do renovations and spend on the grandfather to make sure he is comfortable we also took out a mortgage which we wouldn’t have otherwise done, as the new property was cheaper than what we received from the old properties.

    Why should this estranged daughter be able to run to a no-win no-fee lawyer once her father dies, spew a bunch of rubbish with no evidence to back it up (While we have all the evidence like the previous wills and tribunal recording and doctors notes and solicitor testimony etc) yet because she lives in community housing and has never owned a thing in her life, we will be bankrupted and the property transferred to the daughter just because she is his only remaining biological daughter?

    No-one seems able to tell us whether we have to pay back $A as this was the original property transfer value amount to my wife (Which was professionally valued for stamp duty purposes), or $B which was the sale amount years later. Also, what about all the money we have spent on renovations and bills on this property and maintaining the grandfather?

    Property values are in decline at the moment, so what happens if even with renovations the property is not even worth the $B the previous property sold for? Also, as my wife was the person transferred the original property, is she the one who has to claim bankruptcy or do I have to as well?

    Since finding out how much rights estranged daughters have in these claims if they make things up and run to a no win no fee lawyer, I have been unable to sleep and have been on valium to get through the day. I simply cant cope with the fact my wife and my 20 month old son and I will be homeless, when all we have ever done was the right thing. We owned property ourselves, we were building a life together, we didn’t need the grandfathers property. My wife only even sold it as it was falling apart and our own home was too small for the grandfather to move into. We wanted something suitable for all of us with our child, while being able to continue to care for the grandfather.

    What on earth should we do?
     
  2. AdValorem

    AdValorem Well-Known Member

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    Hi OffGreenFX

    It has been a while since your posted your question and I hope you have found the answers.

    In case you haven't you may find this post useful.

    Section 80(2) of the NSW Succession Act 2006 may also be relevant.

    Clause 80(2) says that a property transferred within the last 3 years before the date of death of the deceased person can be clawed back into the estate if it was entered with the intention of denying or limiting provision being made out of the estate of the deceased person for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order.

    My advise is to get legal advice without delay.

    Regards
    AdValorem
     
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