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Hello My 50 year old brother moved into my 83 yo mothers

 
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Customer Question

Hello

My 50 year old brother moved into my 83 yo mother's home about 18 months to a year ago. He did this to save paying rent. He lives there 4 nights a week. He pays no rent, no bills and makes no contribution to the cost of upkeep of the property, nor does he carry out any repairs or maintenance.

A friend of mine said recently that if he continues to live there until mum dies he may be able to make a claim that it is his home and we would not be able to sell the house or rent it out if he was successful in making such a claim. My friend thought it was adverse possession, or something similar.

Can you advise me if it is likely he could make some sort of claim like this?

Thanks

Cassandra

 

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State/Territory: NSW

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Submitted: 288 days and 8 hours ago.
Category: Australia Law
Value: AU$71
Status: CLOSED
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Expert:  Sydney-Lawyer replied 288 days and 8 hours ago.

Good Evening,


He cannot make a claim for adverse possession.

It appears your brother has need, and if he were to make a claim against your mother's estate, he does not have to be living in the house to be successful.

Living in the house does show dependence on your mother and can make his case slightly stronger.

If who decides to make a claim it will be based on whether or not your mother has made appropriate provision for him in her will.

The following link will provide you with a FAQ about contesting Wills and has a lot of information that will assist you to understand what your brother may be entitled to.

http://www.ericbutler.com.au/questions-and-answers-on-contesting-a-will/contesting-a-will/contesting-a-will-in-new-south-wales/

Generally if your mother makes appropriate provision for him in her will he will not have much of a claim.

As I said in the beginning he does not have to be living in the house to be given the right to make a claim. The fact that he has financial need and he is her son is enough to give him the right to make a claim against the estate, and if appropriate provision is not made in her will he will be granted more.

I cannot tell you how much more as it is not a simple formula but the court looks at each case on its own.

I hope this is of assistance. If you have any further questions please do not hesitate to contact me.

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Customer replied 288 days and 7 hours ago.

Thank you for your response. Mum's will is split evenly 3 ways, (we have a sister) so from what you say I think I don't need to worry.


I'm interested in your comment 'my brother has need'. In my view he has no more need than any of us do ,ie to have a roof over his head. He has a job and could pay rent if he wanted to. He just lives with mum because it's convenient to his place of work. I agree he probably earns 1/2 what I earn but does that mean his 'need' is greater than mine?


I'm also interested in the concept of 'dependence' on my mother. How is that described, legally, in this context? If I had moved in to my mothers house when I got divorced, because it saved me money, would I then be seen to have 'need' and be 'dependent'?


Perhaps I can put my question another way. When mum needs to go to a nursing home, or dies, if my brother does not willingly agree to move out, does he have a right to stay there. ie should my sister and I get some sort of agreement from him in writing to say he agrees his residence there ends at that time?


Would the situation be any different if he paid rent?


Accepted Answer

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Expert:  Sydney-Lawyer replied 288 days and 7 hours ago.

Good Evening


If you all have the same financial need then his chances of success will be very low.

To fully understand how the courts apply the law you really need to read cases on it. If you wish I can give you the database we use and you can search cases in NSW.

If your mother has to go into a nursing home she may need ot sell the house to pay a bond. He will have to leave.

She would be best to have an agreement with him. He should be a tenant and she should get him to sign a lease.

Also she should see her solicitor and give reasons why she does not want him to get anymore and that she is currently assisting him without asking him to pay rent.

I hope this is of assistance. If you have any further questions please do not hesitate to contact me.

Having answered your question I would like to explain how I am paid for my work. The rating given by you, for my answer will decide whether or not I will be paid for my work.

At the end of this post you will see 5 faces asking you to rate my work. Selecting either of the 2 the unhappy faces means you are not happy with my answer and do not wish me to be paid for my work. The other 3 mean I am paid.

I would prefer you rate me at the very end of our session not after each response. This way I can be sure you have an answer that assists you and you can rate the whole experience.

If you want more information after I respond, or wish to have something cleared up, select "Reply so Sydney-Lawyer" or "Reply to Expert" and we can continue until you are satisfied.

I am here to assist you as quickly as possible, and you rating each post will delay the process as it does not tell me what the issue is. I would prefer you ask me questions than rating the response and not providing me with further questions.




Expert TypeSolicitor
Category: Australia Law
Pos. Feedback: 96.1 %
Accepts: 16800
Answered: 7/14/2012

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

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