Real stories: Matters of property

Approximately 30 years ago, our non-English-speaking client’s English-speaking husband arranged, through a solicitor, the transfer of their jointly owned home to our client on the basis of relationship breakdown. As far as our client was aware, there was no relationship breakdown; the couple continued to reside in the home together with their child.

At the same time, the husband’s solicitor drafted a trust document appointing themselves as Trustee and stating that the husband retained a half interest in the property and a Will leaving his estate to their child and making the solicitor Trustee of the estate. The client’s husband died five years later.

The relationship broke down between the client and their child, who was now an adult. The client moved in with a relative a few years ago and permitted the now-married child to move into the property. Our client’s child threatened to throw our client's belongings out, so she contacted SRV for advice.

The client wanted the house sold to be sold and to divide proceeds equally with their child, but the child demanded more than half. The solicitor that had transferred the property to our client and drafted the Trust and Will documents claimed that the property was a Trust property and that they should control it and sell it.

SRV obtained the file from the previous solicitors who had tried to resolve the dispute between our client and their child and found that the Trust had been discharged almost 10 years earlier by our client, the child and the solicitor who had drafted the Trust document.

SRV applied to VCAT for an order for the sale of property and to divide the proceeds equally. After much dispute and the child’s claim for more than half and for Trustee to sell the property, consent orders were reached to sell the property and divide proceeds equally. SRV assisted the client in engaging a conveyancer.

The property didn't sell at auction, and the client went overseas for a holiday for a few months. SRV helped draft a General Power of Attorney allowing the relative to sign a contract of sale if the property sold while our client was overseas.

Our client’s adult child wanted a low offer accepted as they had committed financially to the purchase of another property and agreed to distribute a portion of their share to our client, so our client would accept the very low offer.  Our client agreed, but then the child reneged on the agreement and applied to VCAT to avoid making the distribution to our client. VCAT determined the adult child must uphold the agreement as our client acted in reliance of the agreement.

The property was sold, and our client received half the proceeds and the additional distribution from the child.