WA Should this will go through probate?

[MsMojo]

My Aunty has a house 50% in her name and 50% the name of her brother and his wife. Her brother died and the brothers wife inherited everything. Though no one really knows because no one has been able to see the will. His children were never allowed to see the will, as such no one ever has.

My Aunty now wants to sell the house, with the permission of her brothers wife. However nothing was every put through probate, we are concerned that it should have gone through before she sells the house.

 

[Rob Legat - SBPL]

I'm not familiar with WA law, so my answer is based on Queensland's circumstances - but I doubt they'll be much different. I suspect that the property holding before the death was something in the manner of: "Brother and wife" as joint tenants inter se, and "Aunty" as tenants in common in equal shares.

With a joint tenancy, upon the death of one of them the portion of the property that was owned by the joint tenants (i.e. 50%) automatically passes to the surviving joint tenant. If that's the case, a document proving death (here, a Record of Death) is lodged with the titles office and the property is transferred. Otherwise, the property needs to be transferred with either an original will or a probate being lodged.

Even if the 'wrong' thing may have been done, most states have indefeasible title rules. This simply means that unless there is fraud involved, whatever is on the title is correct. So, if the title is in the name of your Aunt and her Sister in Law - that's all you need to know.