Sie sind auf Seite 1von 6

Page 1

Question 1
Kindly advise John on the steps required before he can
transfer the property to the deceased two sons. Draft the
relevant documents. Also kindly state what type of Tenancy
was created in the ill.
As sole e!ecutor and havin" received the "rant of probate#
John $ayor can now proceed with the %ote of death and
the transfer of property to the beneficiaries.
These are the steps to effectively pass the property&
1' (nce the "rant of probate is received the e!ecutor can
complete the Application To %ote The Death of a Joint
Thin"s he would need&
a' *tatutory Declaration
b' +ertified +opy of (ri"inal Death +ertificate
c' Duplicate +ertificate of Title
d' +ertified +opy of )robate
e' ,evenue affidavit
f' Transfer ta! certificate
"' *tamp +ommissioner +ertificate -.orm /'
h' ,e"istration .ee
0t will then be noted that the owner has died and the date
of his death.
1' (nce death is noted the e!ecutor can add his name to
the title by completin" a Application of Transmission.
Thin"s needed&
a' 2rant of )robate
b' Duplicate +ertificate of Title
c' (ri"inal death certificate
d' Transfer ta! certificate
e' *tamp +ommissioner +ertificate
f' ,e"istration .ee
The e!ecutor will now be able to distribute the estate in
accordance to the testator will as his name is on the title in
his capacity as e!ecutor.
3' The e!ecutor can now transfer the property to the
4eneficiaries named in $r. $"hill will by completin" the
transfer of land application.
Thin"s needed are&
a' Duplicate certificate of title
b' (ri"inal death certificate
c' Transfer ta! certificate
d' *tamp commissioner certificate
e' ,e"istration fee

5avin" taken the necessary documents to the *tamp office
to be stamped and cross stamped documents are
submitted to the Title office.
6pon the successful completion of the followin" steps# the
e!ecutor John $ayor would have transferred the property
to the beneficiaries and carried out the duties of e!ecutin"
the will.
The type of tenancy created by $arcus $"hill 7ast ill and
Testament is a Tenant in common amon" his two son ,o"er
and +arl $"hill# due the words of severance used in the will
8in share and share alike9.
Question 1
Advise ,o"er and +arl whether or not they will be able to
benefit from the money their father died left in his %+4
4ank account.
Page 3
$arcus $"hill operated a sole account at %+4 previous to
becomin" incapacitated. 5e later added his nei"hbour:s
name to the account as ;oint account holder# to facilitate
his nei"hbour in makin" withdrawals and deposits on his
behalf# for he was now incapacitated. ith his two sons
livin" overseas unable to handle the daily mana"in" of his
affairs and his spouse bein" herself also incapacitated# the
nei"hbour has taken on this responsibility.

0n "eneral# a ;oint bank account is a bank account
belon"in" fully and equally to two people. <ach person can
le"ally deposit or withdraw any amount of money from the
account without need for the other=s consent. 4oth names
on the bank account >own> the entire account. $ost ;oint
bank accounts have a ri"ht of survivorship# meanin" that
when one party dies# the contents of the account
automatically are fully owned by the other party.
All of the funds that were deposited and withdrawn were
from $arcus $"hill and were spent on his behalf# and
assumin" his wife:s behalf as well. $arcus $"hill died on
$arch 1?# 1@@/ leavin" a 7ast ill and testament which
named his two sons ,o"er and +arl $"hill as 4eneficiaries
of all estate 8whatsoever and wheresoever9.
There are different types of ;oint accounts and ;oint
account are created for different reasons. %ormally most
;oint accounts carry a ri"ht to survivorship# if this is the
case then ,o"er and +arl would not benefit from the
monies in the account# for it would belon" Awholly: to the
nei"hbour whose name is on the account.
%otwithstandin" that the need for the nei"hbour arose
Page 4
from the fact that $r. $"hill was in declinin" health and
needed someone to mana"e his financial affairs# which his
immediate family was unable to do. 0f $r. $"hill when he
was addin" the nei"hbours name on the account was of
the view and intention that the monies would return to his
estate upon his death for the benefit of his two sons# then
this would show that he didn=t intend for the nei"hbour to
benefit in his personal capacity. ,o"er and +arl would need
substantial evidence to prove the intention of their
deceased father# for the courts to rule a"ainst the "eneral
principle of Joints tenancy and rule in favour of Joint
tenancy for convenience.
0f $r. $"hill had written a letter or directive to the bank
statin" convenience as the reason for creatin" the ;oint
bank account then this issue would have prevented.
*eein" that this is an issue after his death we can assume
that there is no such letter. The law would allow that the
monies is passed to the nei"hbour whose name is on the
account. ,o"er and +arl may make an application to the
court to stop the payin" over of monies by %+4 4ank to the
;oint account holder and seek a ;ud"ement.
Question 3&
Advise +arl whether or not he has an interest in the rent
collected by ,o"er for the property situated at 2reen 5ills#
4anana 5ei"hts in the )arish of *t. Andrew and why.
Page !
The property situated at 2reen 5ills# 4anana 5ei"hts in the
)arish of *t. Andrew was transferred to both your brother
,o"er $"hill and you as ;oint tenants by your father $arcus
$"hill. hat this means is that both you and your brother
are collectively the sin"le owner of the property. As ;oint
tenants their is no special share in the property that can be
identified# as the characteristics of Joint tenancy allows for
the unity of possession -each ;oint tenant is entitled to
possession of the whole land'# unity of interest -each ;oint
tenant interest in the property must be of the same e!tent#
nature and duration'# unity of title and also unity of time.
The important characteristic is the ri"ht to survivorship#
which is upon the death of a ;oint tenant# his interest
automatically accrues to the survivin" ;oint tenant-s'. %ow
on the death of your father $arcus $"hill his interest
accrues to both ,o"er and you +arl.
<ach coBowner has a ri"ht to take such action as will be
effective to sever the ;oint tenancy durin" his lifetime. This
severance will cause the ;oint tenancy of collective sin"le
owner to convert to tenants in common. The tenantBinB
common has a fi!ed share and interest in the property. 5e
has an equal ri"ht to the possession of whole of the
property but not a ri"ht to possess any part e!clusively. A
tenantBinBcommon may deal with his share of the property
as he sees fit.
,o"er $"hill course of action to act adversely a"ainst your
interest in the property located at 2reen 5ills# 4anana
5ei"hts in the )arish of *t. Andrew# includin" to lease the
property without your consent and the withholdin" of rent#
would be considered as an act operatin" on his share by
alienation in <n"lish 7aw and result in the convertin" of
you and his co ownership to tenants in common.
Page "
4ut under the Australian Torrens authority these action
would not be sufficient enou"h to sever the ;oint tenancy
as the le"al title of ownership still stays with ,o"er and you
and his beneficial interest as the property owner is
divested. As a ;oint tenant in fee simple ,o"er can lease
the property without consent. 0t creates a situation where
the ;oint tenancy is suspended or temporarily severed until
the e!piration of the lease. Despite the property bein"
leased by ,o"er# you cannot be preclude by the lessee
from access to the property as the lease is not reco"niCed
by you.
The rent received to date of Three Thousand united states
dollars -6*D3@@@.@@' by ,o"er is payable to him. 5owever
each co owner has a ri"ht to accountin" of profit from the
property# therefore ,o"er must pay you# your share of the
rent collected based upon your interest in the property.
0f its the case where you are barred from access and
en;oyment of the property# you may make an arran"ement
with ,o"er and the lessee in re"ards to the lease
document# or seek by application to the court to have the
lease suspended or make a cause of action. An
e!perienced Attorney at law services in conveyancin"
would be needed.