Last Will & Testament : Securing the inheritance

From last week’s case we know, if you stand by and watch another person take control over property you know to be yours, and allow that person to spend money on it, you are at risk of that person making a claim to your property.

This week, we will look at the actions of a proactive daughter who took steps to secure her inheritance.

 The details

A grandfather gave his daughter land at Bloomfield District but died without making a will. His daughter completed the process to inherit the land but did not transfer the land in her name.

The daughter created a will in 2012 and left the land for his granddaughter. The daughter died in 2013.

The caretaker

While the grandfather was alive, he had a caretaker who assisted his daughter with caring for the property. At one point the caretaker lived on the property with his young children after his wife passed. He lived there until 1988. The caretaker also managed the property next door.

The issue

The caretaker’s son and his spouse lived nearby the Bloomfield property, on Perth Road as squatters. At the same property was another squatter, Mr. Samuels. They were all ordered by the court to leave Perth Road.

The caretaker’s son decided he would move to the Bloomfield property. Mr. Samuels was not sure where he would live. He got permission from the caretaker’s son to temporarily stay at the Bloomfield Property. The men tore down their board houses and moved to the Bloomfield property in 2011.

The trick!

Another man, convinced Mr. Samuels and the caretaker’s son that $168,000 was owing as land tax and if they paid it, they could own the Bloomfield property.  The caretaker’s son and Mr. Samuels decided they would each pay half but the caretaker’s son could only come up with $4,000. Mr. Samuels told the son that he would pay his half but the son would need to reimburse him.

Two weeks later, Mr. Samuels returned the $4,000 to the son and notified him that he was now the owner. As the self-declared new owner, Mr. Samuels demanded $4000 a month from the son as rent.

Getting even!

The son informed the granddaughter who immediately gave them notice to leave the property. The son was not pleased. At this time, Mr. Samuels had started to build a concrete house on the property even though he was told by the caretaker not to.

The counter attack: Mr. Samuels then gave the caretaker’s son notice to leave the Bloomfield property.

Securing the inheritance

The granddaughter eventually entered into a lease agreement with the caretaker’s son. In 2014/2015, the granddaughter tried to survey the property but Mr. Samuels stopped the surveyor.

In 2015 the granddaughter gave notice to Mr. Samuels to leave the property. Since he did not leave, she sought assistance from the court.

Court

Mr. Samuels claimed to have lived at the property since he was a child and did so for 20 years. Based on the evidence that Mr. Samuels did not have a lease agreement, and did not get permission from the granddaughter to use the Bloomfield property, the court concluded that he was a squatter. Mr. Samuels did not give up, and the matter went to trial. He lost, then approached the Court of Appeal.

Mr. Samuels took issue with the granddaughter seeking to remove him on the basis that she had not gone through the process of having the property transferred to her as yet. According to Mr. Samuels this meant the granddaughter had no authority to remove him. This is not correct.

Before completing the process, the granddaughter could not legally own the property. But, as a beneficiary, the granddaughter was entitled to take steps to protect the property that she hoped to inherit under the will.

Mr. Samuels claimed to be the person in possession/ control of the property for over 12 years with the hope that he could defeat the granddaughter’s claim to the property. Possession has a very specific meaning in law, and what amounts to possession will vary by each case. He was not able to prove possession.

A key factor was that the granddaughter had not abandoned the property and could show she remained in possession. How? She had appointed a caretaker for the property, and her ownership was acknowledged through the lease agreement with the caretaker’s son. She also paid the property taxes. The court also relied on her efforts to survey the property, the evidence from other persons that she visited the property frequently, and the fact she brought Mr. Samuels to court without a lengthy delay.

The will was important as it supported her claim of possession which was traced through her mother back to her grandfather. The caretaker was an important witness as he verified the granddaughter’s claim, and knew the history of the property.

The Court of Appeal agreed that the granddaughter remained in possession at all times.

Until next time, stay safe.

Disclaimer by the author: Nothing in this article is to be taken as legal advice. You should consult an attorney regarding your specific case. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed. Post navigation