Published in the Coffs Coast Advocate on 8 August 2014.
Martin and Brenda were married in 1960. They both made wills in 1970 leaving everything to each other and in the alternative, leaving everything to their four children equally.
Martin and Brenda separated in 1980 and were formally divorced in 1985 when the “decree nisi” of dissolution of marriage became absolute.
Martin and Brenda remained friends although Martin’s relationship with his children deteriorated rapidly.
At the time of separation, Martin moved into a local caravan park and Brenda remained in the matrimonial home.
The matrimonial home remained in joint names, their wills remained unaltered and they failed to formalise a property settlement.
Many years later, their eldest child, Dianne moved into the matrimonial home to care for Brenda. Dianne stayed with Brenda for the last year of her life before she passed away two years ago. Dianne did not pay rent nor did she enter into a lease agreement with her mother.
When Brenda died, the whole of the matrimonial home passed to Martin by way of “survivorship” because the property was jointly owned. Martin served Dianne with a “notice to vacate” so that he can take possession of the property.
Dianne did not wish to vacate the family home and she lodged a caveat preventing the property from being sold. Martin sought an order from the court that he be granted possession of the property.
The court found that because there was no “severance” of the joint tenancy, the property properly passes to Martin by way of survivorship. The court also found, in any event, that the will that Brenda made in 1970 validly gave Martin the whole of her estate, including any interest she may have in the matrimonial home.
The court stated that had Dianne made an application for a “family provision order”, the court could have designated half of the property as her late mother’s “notional estate” and made an order for provision in favour of Dianne. Unfortunately the 12 month period in which to make a family provision claim had expired.
Martin was ultimately granted possession of the property and Dianne was ordered to pay his legal costs.
