QLD Right to reside/will

Discussion in 'Wills and Estate Planning Law Forum' started by Kianne, 8 January 2019.

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  1. Kianne

    Kianne Member

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    I would like to ask a question about my late mother's will. There were two wills and the last one was extremely different from the first in that the earlier will was incredibly detailed and the second one in the nursing home was short. However the later will gave my younger brother the right to reside with the house being divided between the four children at varying percentages on the sale of the house. There is no co operation from the younger brother who says that he will stay there as long as he wants . The first will said that he needed to pay us rent, the second one didn't. I believe that it was my mother's intention that the house be sold and divided between the four children. My younger brother and sister are the Executors and will not discuss anything with me.
     
  2. Rob Legat - SBPL

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    What your mother's intention was will come down to what is written in the proven will (i.e. the one that is accepted by the Supreme Court). There being a difference between to two can mean very little unless there are grounds to claim that your mother did not have testamentary capacity to make the later will, or was coerced or unduly influenced in some way.

    As to the executors not being willing to discuss anything with you (and assuming your mother has passed away) that is simply not acceptable. You are a beneficiary under the will and have a right to compel the executors to discharge their duties - but you don't have a proprietary right in the property of the estate until it is transferred ('devised') to you. You do have a right to a copy of the will if it has not been provided to you.

    What requirements are on your brother as to tenancy and payment of rent is up to the terms of the will. It can be on various terms and conditions, so there's no way of telling what is required without a thorough examination of the will. Conditions can require payment of rent, payment of rates, allow for substitution, cease upon marriage, cease upon leaving, and so on.
     
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  3. Kianne

    Kianne Member

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    Thanks. There are no requirements in the new will of my brother in his right to reside. There were in the original will. My late mother told me that she was changing her will because my sister, an Executor, was bankrupt. My brother has not finalised my mother’s mortgage and title for the house. It has been four years since her death. I have copies of both of the wills.
     
  4. Kianne

    Kianne Member

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    Sorry there is a requirement that the property be kept in good order. This is not the case. As he and my sister are Executors, my sister is trying to tell my brother to look after the house but the condition of the house is not good.
     
  5. Rob Legat - SBPL

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    Unless you're wanting to claim that there is something untoward about the making of the second will, forget about the first one. A valid later will revokes all former wills.

    That aside, it sounds like the executors may be failing to properly administer the estate because: (a) they haven't registered a transmission of the property and (b) the property is not being maintained. The executors can be personally liable for these failings. Given the potential loss in the value of the estate caused by a failure to maintain, this could be a not insignificant amount of liability. As a beneficiary of the estate, you'd be entitled to make an application to the court for orders in the administration of the estate and damages for loss of value.
     
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