A house is most likely the largest asset that you have and retaining your home (or the right to live in your home) will be very important.
If you and the deceased owned your house jointly, it is said that the property was owned as ‘joint tenants’. Where one joint tenant dies, the share of the deceased person will automatically pass to the other joint tenant. The property will then be owned solely by the surviving joint tenant. In this case, you will not lose your house under the rules of intestacy.
However a joint tenancy will not protect the house from a claim by another person who makes a family provision claim in NSW.
It is very common for couples to hold their home and bank accounts jointly. You should check whether you and your partner hold property in this way as soon as possible. Do a title search or ask your bank. You should get jointly owned property transferred into your own name as soon as possible. Click here for more information.
If the house was owned in the deceased’s name only, then it will be distributed in accordance with the rules of intestacy even if you are currently living in it, and you will have no claim to the house under the intestacy rules. You should obtain immediate legal advice as to your right to commence a family provision claim.
However, if you contributed directly to the purchase of the home, paid for substantial improvements or renovations to be done to the home, or you have been helping to pay the mortgage on an ongoing basis, then you may be able to bring a claim in court to protect this interest that you have in the property. This interest is usually referred to as an “equitable interest”.
In these circumstances, a court may recognise your rights and interest in the property by finding that the deceased held the property on trust for both of you.
You may also have an interest in the property if the deceased led you to believe or encouraged you to believe that you would inherit the property after their death. You will only be successful in a claim of this kind if you suffered detriment, meaning loss or damage as a result of the deceased’s conduct towards you, in such a way that it would be unfair for the deceased to change his / her mind. In such a situation, the court may prevent the property from being dealt with, without your rights or interest being recognised first.
As discussed above, if you were successful in a family provision claim under the Act, the court could order that the deceased’s house or the deceased’s share in your house could be transferred to you.
These are complex areas of law and we strongly recommend that you obtain legal advice.