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Rights of son???

Discussion in 'Joint Ownership' started by Robj, Jan 9, 2018.

  1. Robj

    Robj Law Topic Starter New Member

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    Jurisdiction:
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    Mum and dad owned a family home. At some point Dad became unemployed and only mum left working. Mum could not afford payments and mum and dad argue until dad agrees to sign a document removing his name from property title. Mum never submits this or makes this official.Instead... she asked eldest son to contribute what should have been Dads share and more.In return the an oral agreement is offered to the son for 50% of future capital gain to keep the property going. This is never written down anywhere.
    This went on for seventeen years worth of payments all officially recorded and available on bank statements.
    Mum then suddenly dies in the shower and estate lawyers suggests that dad owns 100 percent of the property, including all capital gain ...despite not doing anything for all of those years and the son taking on the burden.
    What rights does the son have???
     
  2. army judge

    army judge Super Moderator

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    The son has no rights.
    The Statue of Frauds applies.
    I'll allow YOU to finish YOUR homework.
    Before you ask, yes, I'm licensed to practice law in OZ; I still hold the QC designation.
     
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  3. adjusterjack

    adjusterjack Super Moderator

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    The son has the right to hire an attorney. In the US the Statute of Frauds regarding real property is not 100% absolute. While a transfer of ownership might not be enforceable an equitable interest might be. I'll take a wild guess here that Australia might have some limited options for the son but he's going to have to hire a lawyer.
     
  4. adjusterjack

    adjusterjack Super Moderator

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    Because of the wonderful things you does?
     
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  5. army judge

    army judge Super Moderator

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    LOL

    We're off to see the wizard, The Wonderful Wizard of Oz
    We hear he is a whiz of a wiz, if ever a wiz there was
    If ever a wonderful wiz there was, The Wizard of Oz is one because
    Because, because, because, because, because
    Because of the wonderful things he does
     
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  6. cynthiag

    cynthiag Active Member

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    Great, now I've got that song stuck in my head! :p
     
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  7. zddoodah

    zddoodah Well-Known Member

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    FWIW under U.S. law:

    The son presumably has dozens of rights and trying to create a list would serve no useful purpose.

    You told us that the father "agree[d] to sign [and, presumably, did sign] a document removing his name from property title." You didn't say for sure, but I suppose we should assume the document he signed was a deed. You then told us that "Mum never submit[ted] this or [made] this official." I have no idea what "makes this official" might means, but I guess we're supposed to assume that this means the mother never filed or recorded the deed with whatever public records office one files/records real property records in Australia.

    All correct? If so, as between the mother and father, title has been transferred. That the mother failed to file/record the deed only matters if someone acted in reliance on the title records, which doesn't appear to be the case.

    You then told us that the mother and the "eldest son [entered into an oral agreement whereby the son agreed] to contribute [some unstated amount(s) of money in exchange" for 50% of future capital gain." In other words, the agreement was for the son to make financial contributions toward the upkeep of the home in exchange for the payment of money at some time in the future which isn't clear from your description. The statute of frauds does not apply to such an agreement.

    Finally, you told us that the mother "die[d] [and that] estate lawyers [have] suggest[ed] that dad owns 100 percent of the property, including all capital gain ...despite not doing anything for all of those years and the son taking on the burden." For starters, that the father did not "do[] anything for all of those years" and that "the son [took] on the burden" is irrelevant to who owns the property. Based on the facts provided, the mother owned the property in its entirety at the time of the mother's death. Of course, I'm assuming that the unfiled/unrecorded deed still exists in order to prove the title transfer. That being the case, there are at least three issues:

    First, what happens to the property? If the mother owned it outright at the time of her death, then title passes in accordance with her will or, if she had no will, with the provisions of the intestate succession laws of the relevant jurisdiction. You didn't tell us if she had a will or, if she did, what the will says. While I don't care to research how intestate succession works in Australia, under the law of every U.S. state, where a person is survived by a spouse and one or more children, either the spouse inherits everything or the spouse and the children divide the estate.

    The second issue is based on your statement that the estate lawyers said that the father "owns 100 percent of the property, including capital gain." That makes no sense because title to property and a capital gain are two very different things. This brings into focus the vagueness of the alleged oral agreement. You told us that the consideration for the son's contributions was "50% of future capital gain," but what does that really mean? A "capital gain" is realized when a capital asset is sold. But this property was never sold, so the mother never realized a capital gain, and, if the estate simply transfers the property to the father, then the estate never realizes a capital gain either.

    The third issue is the simplest. The only person who can apparently testify about the alleged oral agreement is the son. The mother cannot do so because she's dead. Did anyone witness the making of the agreement? If the only evidence of the agreement is the son's self-serving testimony, he may not be able to meet his burden of proof.

    Obviously, if this is not merely some hypothetical, the son should retain the services of an attorney.
     
  8. Robj

    Robj Law Topic Starter New Member

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    THankyou for this excellent attempt at helping me... first some of your questions. the property was worth 700000 at the time of the agreement.. it is not valued at 2.2 million and the proceeds of a sale have to be allocated somehow... secondly.. I am sure that the pice of paper was not the deed but a paper drafted by a lawyer authorising mum to do it... but she chose not to remove his name from the title deed..Thirdly.. I am informed that even if statute of frauds did apply that there are two exceptions.. admission and performance. Surely the fact that recorded bank statements now show one sides performance of a contract for over 15 years proves that a contract had been made.
     
  9. army judge

    army judge Super Moderator

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    The payments were gifts.
    There is no contract.
    One person might claim the existence of a contract, yet his assertions would be seen as self serving.
    The home will pass to the heirs as stipulated under the laws of intestacy of the state where the woman died.

    Her spouse will take all, even if there were issue alive upon her demise.


    The Succession Act 2006 (NSW) sets out the order in which your eligible relatives will inherit your estate.

    Read this:


    No Will? What to do | The NSW Trustee and Guardian
     
  10. adjusterjack

    adjusterjack Super Moderator

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    Knowing all that and $5 will get you a cup of coffee at Starbucks but not a dime out of the property without an attorney, if it's even possible with one.

    Why are you resisting hiring one when there is so much money involved?

    Do you think this is a do-it-yourself project that you can handle based on comments from the internet? Trust me, it isn't.
     
  11. Robj

    Robj Law Topic Starter New Member

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    Hello army judge. Thankyou for your comments and posts. If you are an Australia lawyer I have a much more serious case than the one above if you are interested. NSW corruption and lagal fraud including a judge deliberately fabricating a verdict... Before you (might) scoff or be doubtful/ at this suggestion.... Imagine that a cleaner on the first floor of the law buildings found the set of documents that the judge had used in my case in the bin and returned them to the front office... who inexplicably for them called me to come and pick them up... imagine my reaction when i saw all of tge markings and instructions tofabricate, remove and alter evidence.. including actual instructions to do so... it is a big big case
     
  12. zddoodah

    zddoodah Well-Known Member

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    This doesn't make any sense. The only document mentioned in your original post was a document that "dad agree[d] to sign . . . removing his name from property title." If you're saying that some lawyer drafting a document in connection with the oral agreement that the mother made with the son, then that might help the son prove the agreement.

    Not under U.S. law. A son making payments to help his mother save her home would typically be viewed as a gift.

    Your whole story has been in the third person. If it's more than a hypothetical or a situation involving persons other than you, then you should consult with a local attorney for advice.
     
  13. army judge

    army judge Super Moderator

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    I didn't say I was an Australian lawyer.
    Lawyers in Australia are referred to barristers or solicitors.

    I was at one time in my life the Defense Attache for the US Ambassador to Australia.
    I was fortunate to obtain the QC designation during my tenure, and am licensed as a barrister today.

    I no longer reside in OZ.
    I was then, as I am today, a citizen of the USA.

    That said, as an officer of the court, if you possess knowledge of crime or corruption involving the federal judiciary or state judiciary; I suggest you make that known to the Australian Federal Police
    Australian Federal Police or the NSW State Police Home - NSW Police Public Site .
     

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