Contracts and Death

Generally, when a person dies their Legal Personal Representative will be bound by any contracts that the deceased person had entered.

When entering a contract for the sale of land consider this. If you are purchasing a property and the owner dies do you want the contract to continue? If most cases a buyer would still want the property. But a problem will arise where it can take around 3 to 6 months to get probate through.

Without a grant of probate nobody will have authority to sign a contract – which may not matter if the deceased had already entered it. But nobody will have authority to sign a transfer of land document. This could mean even though you have a valid contract you may not be able to settle on the purchase.

Now consider the other side you are the buyer and you die. Do you want your estate to go through with the purchase? If most cases the answer would be no as there will be difficulties on the side of the purchaser too – if loan documents not signed the estate will need to apply for a loan and this could only be done after probate.

Without being able to complete a purchase would lose their 10% deposit, and possibly more. The seller could sue the estate potentially.

Therefore, seek legal advice on whether to have a clause in your contract allowing either party to terminate the contract if either party dies.

Written by Terry Waugh, lawyer at Structuring Lawyers, www.structuringlawyers.com.au

Financial Abuse of the Elderly

There are many instances of elderly being abused financially. Often the abusers are adult children or other family members of the elderly person. In many cases the perpetrator believes they are doing no wrong, but at other times their abuse is more blatant.

Some forms of elder abuse

  • Improper dealings under a power of attorney

This might include an adult child drawing on a parent’s bank account to help themselves, make loans or gifts to themselves or other family members. Sometimes they may ‘need’ the money temporarily and intend to give it back.

  • Bank account abuse

A family member may open a joint account with an elderly person to help them. The account may only contain the elderly person’s money. The elderly person’s health may deteriorate and the younger person may start thinking along the lines of ‘they couldn’t spend the money anyway’. This may also be a plan to inherit the money outside of the will as if the elderly person where to die the money may become the asset of the other account owner.

Sometimes the elderly will give their ATM and pin to another family member, who may then start taking extra funds out.

  • Stand over tactics

I have heard of one incident of an elderly great grandfather being stood over to chance his will. He immediately redid the will a few days later with a lawyer, but this sort of thing would make the will invalid – if it could be alleged.

  • Manipulated into being guarantors

There is many a budding developer or business owner who has talked one or both parents into letting the them use their property as security for a loan. Often the business fails, and the guarantee is enforced and the parents property sold. Luckily it is getting more difficult to use guarantees on parents main residences like this.

  • Under market value transfers

Buying a property from the elder person at less than market value – or even receiving property as a gift. Often this is done for Centrelink reasons too, but this usually doesn’t work anyway, or won’t increase the amount of pension received to 5 years after the transaction.

  • Sell and build a Granny Flat, on your land

This is where granny is encouraged to sell her main residence and to move into with one of her adult children. Often there is not enough space, so granny is encouraged to build a granny flat or otherwise improve the property of the child.

The trouble with this is often granny isn’t an owner of the property, yet she is improving the property with her money. If granny dies her estate is diminished. Many other legal issues to consider too such as bankruptcy or divorce of the child or disputes – granny may want to move out at some point but have no funds to do so.

  • Settlement of large amount of funds on trust

Sometimes a parent is encouraged to contribute funds to a trust controlled by someone else. The parent then has lost control of those funds.

 

If you want to do any of the above, legitimately, then you need to make sure you can rebut any potential allegations of elder abuse. This can be done by various methods (for some of the above) in consultation with a lawyer. For example, the ability to make gifts to family members could be built into the enduring power of attorney document if the principal agrees.

Written by Terry Waugh, Solicitor at www.structuringlawyers.com.au

The Need to Consider Assets Owned as a Joint Tenant in your Will

When two or more people own one asset, such as a property, as Joint Tenants if one dies the asset passes to the survivor automatically bypassing the will. Many people therefore don’t consider the issues of passing the asset in their will because it doesn’t – but this is only the case if you die first.

What if the property passes to you, and then you die shortly after without updating your will?

Example
Dave owns his house with his wife Betty, as Joint Tenants.
Dave dies. Betty inherits automatically. But Betty dies 6 months later without updating her will. Dave hadn’t considered his house in his will – and it would have had no effect if he did. Betty didn’t consider it either, but now the whole house will pass via her will, or the intestacy laws if she has no will.

Solution – assume you will solely own joint tenant assets when making a will.
r more people own one asset, such as a property, as Joint Tenants if one dies the asset passes to the survivor automatically bypassing the will. Many people therefore don’t consider the issues of passing the asset in their will because it doesn’t – but this is only the case if you die first.

What if the property passes to you, and then you die shortly after without updating your will?

Example
Dave owns his house with his wife Betty, as Joint Tenants.
Dave dies. Betty inherits automatically. But Betty dies 6 months later without updating her will. Dave hadn’t considered his house in his will – and it would have had no effect if he did. Betty didn’t consider it either, but now the whole house will pass via her will, or the intestacy laws if she has no will.

The Solution? – assume you will solely own joint tenant assets when making a will; How many people will do so? Without proper legal advice, unfortunate very few.

Written by Terry Waugh, lawyer at Structuring Lawyers, www.structuringlawyers.com.au