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VIC Personal Items on Estate Property

Discussion in 'Wills and Estate Planning Law Forum' started by Sandy, 11 November 2014.

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  1. Sandy

    Sandy Member

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    I have left personal items at my mother's home from when I lived there (gifts from friends, personal photos) and have been told by my brother, who is the executor and one of the 3 beneficiaries, that everything in the house at her death is now part of her estate, under his sole control, and I have no rights to any of it. Is this true? Also, my mother passed away in late July and I did take 2 items of mine very soon after that which he is insisting I must return so that he can then decide if I can have them as part of my share of her estate. Where do I stand?
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Sandy,

    Personal chattels are defined under the Administration and Probate Act (Vic) s 5 and is defined as certain goods in the testator's (i.e. your mother's) home. Under common law, personal chattels may belong to either the person in possession (i.e. physical control and use) of the goods or to the "true owner" of the goods if they can prove they have a better title over them. As a general rule, anything that does not belong to the testator at the time of her death will not form part of her estate, even if such items are found in her house.

    Where there are competing rights (i.e. possession vs. title), the person with the best or better right gets the property. Therefore, you will need to show that your mother did not intend to own the goods, rather, she was merely holding them for storage on your behalf, or that there was an understanding that the goods would be returned to you at your request or something else along these lines.

    Hence, are you able to show that such goods belong to you and not your mother?
     
    Tim W likes this.
  3. Sandy

    Sandy Member

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    Thank you Sarah J, the information you've provided is very helpful. Yes, I can prove I am the "true owner" of the goods.
     
    winston wolf likes this.
  4. Sophea

    Sophea Well-Known Member

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    I agree with Sarah's comments above, only what belongs to your mother will form part of her estate. If she was a bailee of goods or merely in possession of them for you, you will retain title in the goods and you have every right to take them and they should not affect your share of the estate as distributed.
     

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