Life tenancy secured

young womanJenny* has a psychiatric illness and in the past has suffered several episodes of acute mental illness. Life is a struggle. Her mother was aware of Jenny’s difficulties and attempted to account for these in her will. In particular, her will sought to provide Jenny with secure housing.

When she died, her mother’s will provided sums of money for Jenny’s brother and sister. Jenny was not given a lump sum but a life tenancy of a property and $25,000 in trust for the maintenance of the property.

Jenny welcomed this development as it offered her the stability she needed to improve her mental health and quality of life. However, Jenny’s sister was the executor of the will and trustee of the estate and she refused to allow Jenny to occupy the property. She then spent the trust money on property renovations. The property was rented out and Jenny received a regular amount of money that was far less than the rent.

Jenny wanted to live in the property in accordance with her mother’s will, but she could not afford a lawyer and her matter was ineligible for Legal Aid. So she came to us.

Our initial approaches to Jenny’s sister were unsuccessful, so we applied to Justice Connect, a community legal centre that finds free legal representation for people with worthy cases but limited resources. PILCH found a willing barrister who recommended another approach to Jenny’s sister. The second approach was also unsuccessful.

Nonetheless, the barrister was still willing to handle Jenny’s case. Proceedings were commenced in the Supreme Court of Victoria.  We applied for and received an exemption for Court fees as Jenny lacked the means to cover them.

Once Jenny’s sister had sought legal advice, she agreed to allow Jenny to occupy the property.  However, Jenny’s sister wished to resign as a trustee. The Court required Jenny to find two substitute trustees. (There should have been two trustees to start with.)

The matter went before the Court seven times while the parties argued over the terms of the resignation of the sister as trustee and indemnity for the incoming trustees.  Eventually the terms of a deed of indemnity and release were agreed to and the matter was settled.

An accountant and a psychiatric case worker agreed to be trustees. We provided advice about trustee management of the property and applied for the property to be transferred to the new trustees. The matter took more than 12 months to resolve but Jenny eventually took possession and regained a sense of security that we hope allows her to live a full and healthy life.

 

*Not the client’s real name or image. Story retold with permission from our client.

Photo credit: rachel sian / Foter.com / CC BY-NC

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