Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 18 January 2020.
Sam passes away, leaving two children, Michelle and Harry.
Sam’s will leaves Michelle $10,000 and the rest of his estate to Harry.
Ten years earlier, Sam transferred his home to himself and Harry as joint tenants. The intention was that when Sam died, Harry would receive the house by way of survivorship. No money changed hands. They hoped that this would prevent Michelle from making a successful claim against the house when Sam died.
Harry now resides in the home with his wife and two children.
Michelle makes a family provision claim against Sam’s estate.
Michelle seeks an order from the Court clawing-back Sam’s half share of the house for the purposes of making a lump sum order in her favour. She also alleges that Harry is not disclosing the whole of the assets of the estate, which include a large collection of jewellery and cash.
The Court notes that there was a breakdown in the relationship between Sam and Michelle many years ago but makes no finding on the precise course of events nor who was responsible.
The Court finds no evidence upon which to rely in relation to the alleged missing assets.
Ultimately, the Court makes an order in Michelle’s favour to the effect that she is to be paid $100,000. Harry now needs to find the money to pay Michelle if he wishes to prevent the sale of the house.
If Sam had transferred the whole of the house into Harry’s sole name instead of transferring it into a joint ownership, given the expiry of more than three years from the date of the transfer until Sam’s death, the Court would not have had the power to make any orders regarding the house and Michelle’s claim would have failed.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
