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I know someone who is mentally challenged & illiterate. He…

Hi. I know someone...

Hi. I know someone who is mentally challenged & illiterate. He was left a Life Tenancy in his mother's Will. Under that Life Tenancy this person has obligations like paying bills, keeping the house in good condition plus other obligations associated with a Life Tenancy. The person never had these obligations explained to him by the Public Trustee who are executors of the Will. This person has no legal guardian and the PT are aware of this, yet they send correspondence to him which he is unable to read and expe t him to comply. The PT know he has no legal guardian.

Lawyer's Assistant: What state/territory is this in? It matters because laws vary by location.

South Australia

Lawyer's Assistant: What steps have been taken so far?

Constant contact with Public Trustee but they just drag their heels.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

My question is, is the Life Tenancy void because the mentally challenged person has not had the terms and obligations explained to him?

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Answered in 7 minutes by:
3/23/2018
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 46,722
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Verified

Hi, I am Leon, a NSW Solicitor. I am reviewing your question and will reply again in a moment.

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Good Afternoon,

the life tenancy is not void because the obligations have not been explained to this person.

The life tenancy becomes an issue, if the will allows for the executors to terminate the life tenancy if the life tenant fails to comply with the conditions.

If the public trustee was aware that the party with a life tenancy was illiterate and unable to understand, they are owed them a duty of care to try and explain their obligations.

If they have failed in his duty and try and terminate the life tenancy, then he may have an action against them for negligence.

It is the responsibility of the trustee and executor of the estate to explain to the life tenant their responsibilities under the will and if they fail to do so then they are breaching their duty as executors and trustees to the beneficiary.

If you wish to have a phone call to discuss this in more detail please elect a call or I can send you a request.

I hope this makes sense and is of assistance. If you have found my answer to be helpful, please rate me five stars so I can get paid for my services to you. You rating my work 5 stars allows me to continue to provide a service to those who require it.

I am happy for you to ask further questions on anything you wish more detail on.

Let me know if I have answered your question today.

Regards

Leon

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Customer reply replied 4 months ago
Thank you your response has been helpful. The Executor is the Public Trustee. I can say that even if the obligations are explained to him, he wouldn't understand and still not able to comply because he can't read or write. So any comnunication he receives from the Public Trustee he can't read and they have threatened to evict him.
They have to make sure that he understands. If he can’t they have to assist by becoming his carer. If you want to assist him you have to take him to a solicitor to he represented and medical evidence will be required
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Customer reply replied 4 months ago
What do you mean by "carer"? Or do you mean Legal Guardian?

Good Evening

Yes carer, legal guardian. He needs someone to assist him and if they are aware he cannot understand they should have themselves appointed.

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Customer reply replied 4 months ago
There's one problem. They know he doesn't have a legal guardian and have known that for 16 years. Been happy to take instruction from me until now. Now its pass the buck where they're concerned.

Good Evening

You can apply to be appointed as his guardian and take control

You would apply through SACAT

http://www.sacat.sa.gov.au/types-of-cases/guardianship

The you can fight them in evicting him.

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Customer reply replied 4 months ago
Because the obligations haven't been explained to him by the PT would that mean its not actually a life tenancy until he is aware of his obligations and understands them????

Good Evening

He has a life tenancy. The will created it. He cannot he held to be in breach as he did not understand and the trustee had knowledge of his mental impairment.

Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 46,722
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Verified
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