NSW Pressure to add my daughter's name to the title of the house

[RM 89]

Hello,

I have been experiencing the pressure and virtually harrased by my separated hasband's brother to add my daughter to the title of the house. I have written a will to leave everything to my daughter, as well as entering the binding of financial agreements with my current de facto partner so as the house won't be claimed by him. The brother's been appointed as a power of attorney due to my separated husband's terminal illness, and took responsibility of his financial and estate matters.

The title of house is currently solely under my name, because when we purchased the house, our daughter was too young to put her name on the title, as well as to prevent my separated husband to mortgage the house to purchase something( which he did in the past without my knowledge). Both myself and my separated husband agreed that the house is daughter's asset.

If I add my daughter to the title, it will incur a substantial stamp duty that I cannot afford. I have explained this to the brother but he simply said 'just get a loan', and denies the legal effectiveness of binding financial agreements. Another issue he sends emails to my daughter instead of directly communicating with me. As a result she is very much distressed as well.

My question is:
Can a power of attorney have authority to force someone to make change to the title of the house? What if the power of attorney appears to be biased and abusing his power?

I will most appreciate your advice and knowledge.

Thank you in advance.

 

[Atticus]

My question is:
Can a power of attorney have authority to force someone to make change to the title of the house?

POA generally only gives authority to act on behalf of the donor in legal matters to do with the assets & financial resources under the ownership & control of the donor... Can't see how it would apply to the property if it's in your sole name, & definitely dosen't include any power to compel you to agree to what he is asking...

It may be *possible* that because your husband has an equitable interest in the place by way of family law, the POA may be able to apply for & be granted a caveat over the title, however you would need proper legal advice on whether that is indeed possible

 

[RM 89]

Thank you Atticus for your response. My separated husband supports me and doesn't have anything against me as a title holder, as he knows I am acting as a guardian of my daughter's asset.

Following your advice, should I seek advice from a family law expert or civil?

Thank you.

 

[RM 89]

Hi Atticus,

Thank you for your response.
My separated husband supports my position and idea that I am acting as a guardian of our daughter's asset, and has no interest in claiming any share of the house.

Following your advice, shall I seek advice from a family law expert or civil law?

Thank you.

 

[Atticus]

Both myself and my separated husband agreed that the house is daughter's asset.

You have left the house to your daughter in your will & have a BFA with your current de facto to exclude any claim to the house should you separate... Your ex husbands brother acting as his POA is obviously still concerned that if this de facto relationship should end that the BFA may be challenged.... In his mind actually including your daughters name on the title is the safest option & he may have a point as BFA's can be challenged in some circumstances.... Just one example, there is a section in the family law act that states a BFA can be challenged on the grounds of a material change in circumstances since the BFA was made regarding the care of a child.... Are you of child bearing age?... If you were to have children that could be grounds to challenge... Another is if at the time a BFA comes into effect, the terms of the agreement means that a party to the agreement is unable to support his or herself without the aid of a means tested pension allowance or benefit...

Have you actually inquired exactly what it may cost to include your daughters name on the title... Is it possible that your ex would contribute towards that cost if you are both of the same mind in wanting the home to eventually pass to your daughter...

Perhaps the best person to see for further advice would be a property lawyer

 

[RM 89]

You have left the house to your daughter in your will & have a BFA with your current de facto to exclude any claim to the house should you separate... Your ex husbands brother acting as his POA is obviously still concerned that if this de facto relationship should end that the BFA may be challenged.... In his mind actually including your daughters name on the title is the safest option & he may have a point as BFA's can be challenged in some circumstances.... Just one example, there is a section in the family law act that states a BFA can be challenged on the grounds of a material change in circumstances since the BFA was made regarding the care of a child.... Are you of child bearing age?... If you were to have children that could be grounds to challenge... Another is if at the time a BFA comes into effect, the terms of the agreement means that a party to the agreement is unable to support his or herself without the aid of a means tested pension allowance or benefit...

Have you actually inquired exactly what it may cost to include your daughters name on the title... Is it possible that your ex would contribute towards that cost if you are both of the same mind in wanting the home to eventually pass to your daughter...

Perhaps the best person to see for further advice would be a property lawyer

Thank you again for your response.

I am too old to have another child, and my partner never married nor had a child, and retired 6 years ago, with relatively comfortable retirement asset. He is also going to prepare a will to leave his asset to my daughter. So I don't think there is any possibility of challenge here. The stamp duty can be $65000-75000; it is just beyond my financial capacity as I work only part time, and until my daughter reached 10, I didn't return to work, so I don't have much saving nor super, either.
Furthermore, Myex husband's treatment is very costly, and I really don't want to rope him in this. So we would like to avoid stamp duty to prevent a financial blow.

I will seek advice from property lawyer regarding this.

Many thanks for your great advice, Atticus.

Kind regards

 

[RM 89]

Hello,

I am opening my inquiry again. I appreciate any suggestion to solve the ongoing issue.

I have communicated my intention to my ex husband's brother that I am not going to change the title of the house due to my financial circumstances as well as I am assured that my de facto partner's abusolute intention not to claim the title of the house. My ex husband also advised his brother not to bother both myself and our daughter.
However, he is persistently contacting my daughter about this matter (he never sends me messages but to my daughter), and arranged to have our house evaluated without our consent ( and the bill of $800 is to be sent to us).We have told the valuer that the service is not requested by us and the evaluation was cancelled.

Then the brother has sent an email to my daughter again stating that the house needs to be evaluated then we can talk about the stamp duty. To me his persistent attitude appears to be almost obsession and I feel rather creepy.
This pressure, almost harassment has been ongoing since June, and it has started to affect our emotional and mental health.

I am wondering if there is anyway to convince him to stop this persistent pressure on us? Do I need to hire a lawyer?

Thank you in advance.

 

[Arche]

Hi RM
There are a couple of issues here.
Firstly, the person who acquires the interest in the property is the one who is obliged to pay stamp duty, ie your daughter and not you.
Secondly, was there a property settlement done when you and your husband separated? If not, then what could happen is that under the terms of a Family Court settlement you could transfer, free of stamp duty, part ownership to your ex. to do want he wants in his will. This is subject to whether you even owe him anything. There isn't enough information here to say.
Thirdly I should think that your brother in law has no business, without a court order, trying to make you do anything.
Fourthly - this is a tricky one-does your ex have the capacity to revoke the Power of Attorney if he wanted to?

Really, you need to take all the information you have and get proper formal legal advice, including whether you can stop what may amount to harassment - perhaps starting with a letter from a lawyer.

 

[RM 89]

Hi RM
There are a couple of issues here.
Firstly, the person who acquires the interest in the property is the one who is obliged to pay stamp duty, ie your daughter and not you.
Secondly, was there a property settlement done when you and your husband separated? If not, then what could happen is that under the terms of a Family Court settlement you could transfer, free of stamp duty, part ownership to your ex. to do want he wants in his will. This is subject to whether you even owe him anything. There isn't enough information here to say.
Thirdly I should think that your brother in law has no business, without a court order, trying to make you do anything.
Fourthly - this is a tricky one-does your ex have the capacity to revoke the Power of Attorney if he wanted to?

Really, you need to take all the information you have and get proper formal legal advice, including whether you can stop what may amount to harassment - perhaps starting with a letter from a lawyer.

Dear Arche,

Thank you for your response.

My daughter responded to her uncle, that she understands that stamp duty is her responsibility, but given she is a full time student it is impossible. I have no intention to impose the payment on our daughter, but I advised he might stop harassing us if says this to him. But he is still telling us to mortgage the house to pay the stamp duty, which does not make sense to us.

My separated husband and I didn't do a property settlement, but I did receive a letter from his lawyer that time, regarding matrimonial affairs to enter a Deed,describing that all of his title of the house and house content to be transferred to me in 2008, and he will pay maintenance for our daughter and no to divorce for the sake of our daughter.
As I did not object, I believe it has been lodged. ( it was noted that in case of my objection they would proceed to lodge an application to seek orders from the Court for a property settlement, as well as a child support assessment, but it didn't happen)

My separated husband's health is currently better, but in terms of dicision making, I am not sure. He sent me a copy of his will written last year, in which he nominated both his partner and our daughter as executors of his will, which I have nothing against with, but of course his brother overrode this, and took control of the situation. I am grateful for his assistance, but despite my husband is still to some degree capable, the brother is deciding what he thinks is best. However I don't think my separated husband is thinking to revoke the Power of Attorny.

I have no interest about his assets, but we agreed about his remaining superannuation to be left to me, to supplement my 10 years raising our daughter without working. I have singed the legal document from his company in the US last year.

I have sought a lawyer recently to consult this matter, and she suggested to enter the BFA with my partner first of all, and either:

1. Ser up a trust deed for the house and I become a trustee and our daughter as a solo beneficiary.
2. To make a mutual irrevocable will between myself and separated husband to announce that our daughter has
only right to inherit the house.
3. To apply for Consent Orders between myself and separated husband to block any claim for the house.

I have explained these to the brother but he said they can be overturned at the court and not effective.

I am feeling just no way out as he is not willing to listen to me.

Do you think any or the measure to protect the house as my daughter's asset is not enough?
My another concern is if I cause too much fliction, he might make a biased, unfair decision regarding my daughter's right to inherit part of his assets.
Thank you.