Article by Manny Wood published in the Coffs Coast News Of The Area on 14 October 2022.
Glen and Luke inherit a property from their mother June when she passes away. They instruct their solicitor to transfer the property to them as Tenants in Common.
As Glen was living in the property and taking care of June when she passed, Luke is content to let Glen continue to live in the property, provided he pays all rates, keeps it insured and well maintained.
Decades later, Glen is diagnosed with a rather aggressive form of cancer and his ability to care for himself diminishes quickly. The property must be sold to cover the cost of Glen’s care.
A buyer is found and contracts are exchanged relatively quickly. A settlement date is set for 28 days after the date of the contract.
Unfortunately, Glen dies a week before the sale settles.
Glen left a simple will stating “I give the whole of my estate to my brother Luke”.
As the property was owned as Tenants in Common, Luke must apply for a Grant of Probate before the sale can settle, which he instructs his solicitor to do.
Luke’s solicitor, who does not specialise in Estate administration, is unaware that he is able to apply for an urgent Grant of Probate.
In the meantime, the purchasers see that interest rates are rising and get cold feet. They decide to issue a Notice to Complete to Luke, giving them the right to pull out of the purchase if the sale does not settle within 14 days of the notice.
As Luke does not obtain a Grant of Probate in time, the sale is unable to settle and the purchasers pull-out.
After a delay in finding a new purchaser, the property eventually sells for a significantly reduced price.
Thank you to Jamie Visco for his assistance with this column. Email Manny Wood, principal solicitor at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487. This column cannot be relied upon as legal advice.
