Daughter of deceased loses battle for occupied property

Published 29 Aug 2018

When the head of a family passes away, complicated legal battles may arise about property and estate possessions. In a recent case, the defendant, who is the daughter of a recently deceased man, had lived on a property that happened to be the only valuable asset the man left behind to his five children.

Defendant fights for right to live on property

Although the defendant had lived on the property for over a year before her father passed away, the plaintiff – the estate of the father – is claiming that she had no right to reside on the property.

The Will designated that the five children were the beneficiaries, the defendant being one, and the property is thought to be worth about $200,000.

The defendant has filed three defences against the claims made by the plaintiff, one in April 2018 and two in June 2018. The defences made allegations of wrongdoing against the other beneficiaries and the plaintiff, but did not address the issue or provide proof of her right to reside on the property.

In May of 2018, the plaintiff submitted an adjusted claim that, instead of asking for a declaration about the defendant’s right to reside on the property, they now sought an order to have possession over the property in the form of a writ of possession.

The decision

The court did not find any legal basis in the three defences for the defendant to continue to reside on the property. The defendant suggested that the deceased had given permission to her to occupy the property before his passing. But, the court found that the defendant had previously agreed to vacate the property at the end of 2017, which did not happen.

The court found the defences provided by the defendant to be repetitive and unhelpful forward the plaintiff’s claims, and it was ordered that all three of the defences be struck out. The judge’s notes indicate that without a lease, it would be difficult to provide a convincing defence against the plaintiff that the executors should not overtake possession of the property.

Thus, the plaintiff was granted liberty to move for a default judgement on the amended claim and for leave to issue a writ of possession.

If you need assistance with contesting Wills or have inheritance dispute questions, contact us today at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers for a free consultation.

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