‘Can my estranged brother fight my attempt to sell our late dad’s house?’

Dec 20, 2020
Family fights are bad enough on their own, let alone when there's money involved. Source: Getty.

Q: My father passed away in 1983 and left his house in equal parts to my half-brother and I. He also added the provision that his de facto wife have life tenancy. His de facto, who is now in her 90s, is still residing in the house, as is my brother who has never married and who, apart from a once a year visit or phone call to me, is otherwise estranged. I have had no reason or wish to have contact with my stepmother due to issues with her that began as a child and as such, there is no ongoing communication with that side of my family. 

My questions are this: once my father’s de facto passes away and my brother and I gain full, legal ownership of the house, what impediments may arise if I wish to sell the property? Can my brother dig in and refuse to agree to sell the property and carry on living there? If so, what are my legal options to force him to sell the property or come to some monetary settlement with me?

I have received no benefit in any way from my father’s will over the past 37 years, unlike the de facto or half-brother who have lived rent-free for all of that time. There have been no renovations or improvements made to the house and so it remains exactly the same as it was in 1983.

Additionally, my father’s de facto had a daughter from a previous relationship who was not adopted but brought up in our family home and certainly was not included in the will.

Is there any way that she can take part in any action that may prevent me from selling the property as is my wish or make any claim over the property? If it came to a legal situation, could this dispute be settled via a tribunal such as the Queensland Civil and Administrative Tribunal or would it need to go before a magistrates court, and if so, could you provide an estimate any of costs involved? I like to remain optimistic that I don’t find myself in that situation but would also like to be prepared if I do.

A: In relation to the sale of the home, if your brother does not wish to sell at the time, you have two options:

  • He can buy out your interest (which doesn’t seem likely);
  • You can go to the Supreme Court to get an order that the home be sold and if you succeeded, which usually you do, he would have to leave.

There would no doubt be argument about what your respective share of the proceeds of any sale would be, given, for example, his rent-free occupation, not to mention any capital gains tax implications for you in selling the home. In the meantime, I am not sure what the arrangements are for paying property costs such as rates or insurance, but you would need to clarify this.

In terms of any challenge by the de-facto’s daughter to your father’s will, given he died in 1983, if she was eligible to challenge, she should have done so then. Her prospects of doing so now, some 37 years later, are infinitesimal given the strict time limits that apply. As a result, because of that, she could not interfere with the sale of the home.

Any action you may have to take in relation to the home would have to await your stepmother’s departure, be it to heaven, or to another place of residence e.g., aged care facility. I don’t know the precise terms of her life interest, and, as such, it is difficult to say what a transition to aged care might mean.

n terms of your concern about being prepared, however, it would be best to get further advice at this stage about the impact of any such move and on your rights in relation to your brother. You should raise the issue of the cost of such advice with any lawyer you choose.

IMPORTANT LEGAL INFO This article is of a general nature and FYI only, because it doesn’t take into account your financial or legal situation, objectives or needs. That means it’s not financial product or legal advice and shouldn’t be relied upon as if it is. Before making a financial or legal decision, you should work out if the info is appropriate for your situation and get independent, licensed financial services or legal advice.

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Have you been in a similar family situation? Did your experience involve legal action or was it resolved amicably?

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