VIC Settling Mother's Deceased Estate - Changing Locks to Property Until Payout?

[James D. Ford - Solicitor]

I repeat my concern about the lawyer acting for both parties!

To be clear, if you and your brother do not agree, your brother will most likely be able to force a sale by public auction (without your consent or approval). It is a complicated process, but generally, it can be done...

I am stating this without confirming with the relevant VIC legislation... but would be very surprised if this was not the case.

You need to be aware that if your brother gets his own legal advice.. this is most likely what they will advise him...

Though practically speaking, it would most likely be counterproductive, and he would end up with less money if he forced this route to be taken, so given you are about to pay fair market value, why would he force a public auction? It would work against common sense.

If he did do this, there is nothing stopping you from being a bidder at the auction.

My personal opinion is to do as I have suggested above, and make the inventory. I agree with your thinking, that whilst it might be legally correct. In this situation, changing the locks may aggravate the situation, and cause the deal to fall over.

Kind regards

 

[help101]

**************UPDATE********************

Lawyer got back to us to advise that my brother has now set some demands.
He is already getting close to $440K by the time we buy him out, and the mother's shares, monies etc.

He is demanding to charge us $500 backdated from when the mother passed away in May last year. Is that possible? There is no rent plan or contract and we have been covering the upkeep of the house and paying the bills which are now in our name.

He is asking for a further $5000 which he assumes possibly half the value of the house contents. Clearly, he does not want any of the contents. just money. Because the $440K is not enough?

My partner is extremely upset and stressed. We are adamant that we not pay any extra to the brother. I have suggested that maybe if we were to pay the extra $5000, it may end the situation and we can all move on. As if this drags out for 4 or 5 months more, it would be costing $5000 or more anyway?

My partner is not coping well at all, understandably as they lost the mother. Do you suggest we find other legal help and mediation? Or possibly take the $5000 option in the hope the brother then doesn't ask for more?

 

[James D. Ford - Solicitor]

From the beginning, I raised my concerns about the fact you are both sharing the same lawyer!

If I was acting for you, I would ask for your instructions to make a counter-offer.

Kind regards

 

[help101]

From the beginning, I raised my concerns about the fact you are both sharing the same lawyer!

I will contact you, with regard to acting for you to assist a resolution being reached.

If I was acting for you, I would ask for your instructions to make a counter-offer.

Kind regards,

James

The reason we have the same lawyer is that this is the law firm that drew up my dad's will, so going through them for probate and to divide the estate seemed like the logical thing to do. It's not until recently that all this trouble with my brother starting occurring after we were both presented with the deed.

 

[James D. Ford - Solicitor]

Yes, understood - normally using a law firm to assist with the probate and distribution of a Will is fine.

However, as discussed... now that you are purchasing the Property, rather than it being sold at auction to the public, your interests and your brothers interests are no longer aligned, and it is difficult for any lawyer caught in the middle to advise you both at the same time.

Kind regards

 

[help101]

If my brother ends up taking this to another lawyer, would the lawyer that we have been jointly going through then be able to act on my behalf or would there still be a conflict of interest?

We gave two options to my brother: he was free to come over and go through some things and then move and contents he wanted to keep, or for him to take the car and sell and keep the proceeds which could be around 3-8K.

We gave him those options as we feel he was trying to extort? A payout of the contents in the home.
So we put to him he could attend or nominate what he may have wanted.

It has now been almost a week since we have heard anything from him. Obviously the longer this goes, the more money it costs.