Bequeathed house dispute, auction or buy out other party.

OK, lots of wrong assumptions goin on, guess it s hard for late posters to read all previous.

Here are the summarised facts as posted previous:

1) This post is not about a dispute within an estate.
Its about 2 joint owners ( or tennants in common) not agreeing on selling at auction or one buy other out.

2) probate one year ago.

3) Exectutors will wrapping up estate easter. ( in two weeks).

4) Transfer ownership of house to me and bro then.

5) I then wish to buy out bro.

6) Dad has always stated he wanted the house, (not money from its sale), to stay in the family, preferably a male. Has been saying it for years, and everyone who knew him knows it.
I wish to honour his wishes. His wish was not mentioned in his will.

7) Dads previous will left everything to his grand son ( my son). He changed that in last weeks of life as his wife and my bro told exectutors they will contest.

8) bro will not receive any other inheritance besides half the house. ditto me.

9) Bro has indicated he wants to auction.

10) Ive made bro an offer, he wont respond with a counter demand, he just wants to go for auction.

11) He casually mentioned the supreme court could force me to auction. He seems to think that will cost him about $1500.

12) some posters are worried about awkward moments between me and bro at future xmas gatherings, Im not. there will be no such gatherings.

My feelings toward bro and his wife were permanantly altered 5 yrs ago, when his wife started a campaign to get hold of as much of dads money as she could. (started day after she found out about house to grandson Will). Bro went along for the ride. As I said in a previous post, I could start a whole new thread on her.

Wrapping up, it seems where im at right now, is to get all the facts and costs regarding bros supreme court action how many visits to court?, expected cost etc.

MY ONE & ONLY QUESTION FOR NOW....
Does any one know someone hows been thru similar supreme court action, how long did it take and what did it cost each party?

Again i must repeat this is be between two co-owners, not contesting any wills here.

Thank you all for help so far, reading your responses has helped so much, and helped to clear my head. I cant believe so many people put the time in to help some one they do not know. Thanks all.
Rap.
 
MY ONE & ONLY QUESTION FOR NOW....
Does any one know someone hows been thru similar supreme court action, how long did it take and what did it cost each party?

I would ring a solicitor and ask for rough idea of what this would cost your brother, and what it could potentially cost you.

In all the circumstances, you could still auction it, buy it yourself. Any money wasted by the auction campaign and by perhaps you having to pay more than you were prepared to pay (with any fair offer based on current value and comparable sales) would more than likely be less than the amount you would be wasting by fighting him.

I can understand his shock at being left out of the previous will and his dissatisfaction at your son being left a house, but I also know that with the problems in my family, someone who does know our family history would not understand the wills my parents had drawn. Strangers making judgements about a will have no idea of what has gone before, and why such a will was drawn.

I do know that a solicitor told us that being left nothing, or next to nothing, would be very good grounds for contesting a will, so even with all the history that you both know about, your brother would have had a good chance of successfully contesting the will that was changed.
 
Initiating an action in the Supreme Court (NSW) will cost at least $749 to file the claim. This is the fee imposed by the court. Then as it progresses there are more fees - for hearing dates, counter claims, filing of documents etc.

Add to this your solicitor fees at around $300+ per hour. You solicitor will also want a barrister's opinion and probably to appear + the conferences.

If you lose you may be up for the other side's costs too.

Could be very expensive all up.

Plus the time factor - probably 6-12 months at least
 
Initiating an action in the Supreme Court (NSW) will cost at least $749 to file the claim. This is the fee imposed by the court. Then as it progresses there are more fees - for hearing dates, counter claims, filing of documents etc.

Add to this your solicitor fees at around $300+ per hour. You solicitor will also want a barrister's opinion and probably to appear + the conferences.

If you lose you may be up for the other side's costs too.

Could be very expensive all up.

agree with this. there is also the possibility of mediation prior to it going to the supreme court. this also costs but often a settlement out of court is arrived at, but the process is not without costs.
these will probably come out of the estate.
if you can negotiate with your brother prior all well and good but from what you have stated this seems remote??

it is possible to read actual cases and the results on line. for actual costs it will depend on how long the process takes and you do not want to exhaust the value of the asset in question.

good luck.
 
This is scary to read Rap as it is highly reflective of our current situation as well. If I didn't know better, you could well be the "other side".


Dad has always stated he wanted the house, (not money from its sale), to stay in the family, preferably a male. Has been saying it for years, and everyone who knew him knows it.
I wish to honour his wishes. His wish was not mentioned in his will.

NO. This is the same nonsense that "the other side" keeps banging on about as well. Double NO. Your father was extremely unwise to be going around telling all and sundry, for years, what he wanted, but then his valid written will says something completely different.

In our case, it's taken 6 months for someone to finally say it. The old man should of kept his big mouth shut if his "wishes" are not what he was prepared to put in his executed and valid will. It dishonours his memory I know, it speaks ill of the dead I know, and it tarnishes his memory I know.....but someone at some point has to stand up and say it.....the only thing that is relevant is what is written and signed off in the will. The executor is compelled to act accordingly, and all that went beforehand is simply hearsay.

What we've found is that people can't help themselves....they've simply got to go around verbally saying this and that.....but then....don't back it up with the written will, which always takes precedence. Please don't beat your brother and SIL around the head for the next 40 years with "what Dad really wanted" and then go on to say something which contradicted what was in his last written will and testament.


Dads previous will left everything to his grand son ( my son). He changed that in last weeks of life as his wife and my bro told executors they will contest.

Doesn't matter. What was in his last will is totally irrelevant and shouldn't be brought up. It was revoked whenever the new written will was executed and counts for nought.


Sitting in your brother's and SIL's position with our situation, I see the same old lines being brought up, and all of them are highly emotional, highly verbal and highly not relevant.


What is relevant is what is written and signed off in his very last will. This is what "the other side" refuses to acknowledge. There is always a "yeah but what Dad really wanted...and you know it" just around the corner.


It sounds like your family made the classic mistake that my wife's family made as well, and that is, not being mature enough to calmly sitting around a big table when everyone was alive and competent, and spoken about these things in a rational manner to everyone's satisfaction.

Can I ask another question - is the executor of your father's will related or not. We've learnt so many lessons going through our melee, but alas, trying to educate my parents on the pitfalls is already falling on deaf ears, so I suspect we will have to go through this malarkey as well. It's all so unnecessary.
 
In our case, it's taken 6 months for someone to finally say it. The old man should of kept his big mouth shut if his "wishes" are not what he was prepared to put in his executed and valid will. It dishonours his memory I know, it speaks ill of the dead I know, and it tarnishes his memory I know.....but someone at some point has to stand up and say it.....the only thing that is relevant is what is written and signed off in the will. The executor is compelled to act accordingly, and all that went beforehand is simply hearsay.
Harsh, but true, IMHO. Really, what's the relevance of your father's intention that he wanted a male offspring to own the property? If you're not planning to live in it anyway, then what wish of his is being fulfilled by you owning it as an IP? Once he's gifted it to you and your brother via his will, he has no control over what you two do with the asset. If he truly intended that it forever remain in his bloodline, then it should have been put in a bloodline trust, or something like that.

I respect your desire to honour what you perceive were your father's wishes, even though I don't understand your thinking, but if you're determined to retain ownership, then it seems to me that the best course of action at this stage is to agree to an auction and bid yourself (openly). I'd be highly confident that this would be a cheaper approach than either party involving lawyers.

Digressing a little and going back to the fairness of wills... Neither of my siblings have children, and if my parents were to leave a substantial portion of assets to my children, I would consider that fair to my siblings, and I wouldn't blame my siblings for considering that unfair. Given that we do all get along well and everybody's close, then each of the three offspring should get equal shares; it just happens that my family unit is a bigger unit with whom I have to share my third, but that's my choice. :)

Barring unusual situations where there are estrangements, children who were adopted and later rediscovered, etc, if you have x children, then IMHO, whatever the parents don't leave to charity or whatever should be split x ways. I don't agree with leaving it to grandchildren, unless each of the x siblings happens to have the same number of grandchildren, because it does mean that the branch of the family with more kids gets a larger share of the estate, and that can reasonably be perceived as unfair.

It should be split x ways, then it's up to the x siblings whether they wish to distribute some of their share to their kids (the grandkids) or not.

Some people say the fairest way is to count all blood descendants, and divide it that way. So in our family, there'd be my two siblings, myself, and my two sons. That would mean that my family unit would get 60% of the estate. I don't think that's fair, either.

Gosh, it's a bl00dy emotional and legal minefield, this whole estate planning shenanigans!
 
Probably an emotional minefield more than anything. The legal stuff can be pretty clear.

My dad who died last year was married to a younger woman - not my mother. With some obvious foresight, I remember at least 10 years ago he gave my brother and I a bit of cash (maybe $20K)and told us that was it.

The house and any remaining cash went to his wife when he died, which seemed fair enough to me.

He was always pretty sensible and fair.

Seems like going to court could be an expensive and protracted exercise for you, Raphael. And the place might end up getting sold anyway.

I would make an offer in writing to your brother explaining how you arrived at that price. Then tell him the costs involved in selling - advertising + comm.

If he digs his heels in, you'll just have to buy it at auction. (You'll probably need another thread about how to go about that e.g. tell your brother you're not going to bid and then send someone else along etc etc.)
 
If your brother goes to court seeking an order to sell it will be granted. There will be cost as statutory trustees for the sale will be appointed.

If you try and contest the order for sale costs will be likely to be awarded against you.

Dazz is correct - accept the will as it is written and get on with life. Your Dad was sensible enough to change his will and avoid the possibility of several tens of thousands of dollars being spent on a Family Provision Act claim.
 
MY ONE & ONLY QUESTION FOR NOW....
Does any one know someone hows been thru similar supreme court action, how long did it take and what did it cost each party?


Solicitor - $350 - $500 per hour. + $150+ per hour each for junior/para legals used for research etc.

Barrister - $5000 per day

Mediator - $5000 per day (if sent there before Court).

Court -approximate costs for a 2 day trial $50k.

We didn't make it to court, but 4 months of Argy-Bargy didn't leave much change from $50K.

Auction does look like a cheaper option at the moment.

Sunshine
 
excellent answer.

a lot of money and a lot of uncertainty an emotional pain.

families can be more distructive than anything a stranger could inflict.

good luck.
 
Wylie; Thanks, will contact a solicitor for estimate. I agree with you regarding pay more at auction to save on legal battle.

Terry; thanks, exact answer to my question.

Pully; costs cant come out of estate as estate will be wound up before any negotiations or legal action take place.

Dazz; Im not disputing what the will says. Its simple, house to me and bro, end of story, all good. Its the next step thats the hurdle. bro wants cash, I want to give it to him, he dont want it from me, he wants it from the market. Executors are not related.

Ozperb; All the points you make I agree with. What i perceived to be dads wishes were dads wishes. He was OK with me turning it into a rental, He realised I could not live in two houses at the same time.

Depreciator; The offer you describe is the offer ill make. thanks.

jrc; I accept the Will as written. When we get to the time of price negotiation the Will will be in the past, and two joint owners will be engaged in a robust exchange of informed discussion. I wish to be informed as much as possible.

Sunshine; EXCELLENT ANSWER! Thats the exact info I was after. Thankyou, Rap.
 
Raphael,

The issue isn't the will as written, it is that your brother cannot be compelled to negotiate with you to sell to you and the law states that he can apply for an order to sell. If this happens the sale will be in the hands of other people.

Possibly you see this as a matter of principle - if so that attitude will cost you - possibly you will be ordered to pay your brother's costs.

MacDonald v Macdonald http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2009/794.html?query=Section 66G might be of interest
 
taxes on bequeathed property

Hello

My elderly parents would like to know what type of taxes have to be paid when they leave their property to one of their kids when they both pass. They own the home outright.
Is it also true that in Joint tenancy can have negative tax consequences for the surviving partner?

Thank you
Ms E
 
Hello

My elderly parents would like to know what type of taxes have to be paid when they leave their property to one of their kids when they both pass. They own the home outright.
Is it also true that in Joint tenancy can have negative tax consequences for the surviving partner?

Thank you
Ms E

I don't think there are any taxes on the transfer from a will. Only, possibly, later if the recipient sells the property.
for CGT on death see s128-10 ITAA 1997
http://www.austlii.edu.au/au/legis/cth/consol_act/itaa1997240/s128.10.html

And, for the tax Q, I think that JT and TIC are treated the same. When someone dies and an asset is owned by them with another person as joint tenants, then it is treated as if they were tenants in common in equal shares - for CGT purposes anyway. The share of the deceased is consider to be acquired by the survivor on the date of the death. s 128-50 ITAA 1997
http://www.austlii.edu.au/au/legis/cth/consol_act/itaa1997240/s128.50.html
 
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