Asked by the Customer on 19-03-2019 15:59:55
Question posted in the Property Law category relating to Western Cape

Hi,

My mother jointly bought a house with her husband of 4 years, where he promised to pay her back his share as he was waiting on some money. They were married in A.N.C. She paid her half upfront and then, s a etmporary measure, she used her access bond on our primary home to settle the rest, keeping in mind he would pay her at some point. He didnt, she passed away, leaving us, her heirs, with debt on our primary home. We thus had to settle to avoid the bank foreclosing on our family home.

He took the keys for the secondary house and has been living there since her death, also renting out the majority of the house, of which we have proof. The estate is now ready to be closed, but for that to happen he has to provide the deed and sign some document with the executor. He is refusing, has made various threats. He also says he wats to buy us out but also has claims for renovations he made while living there.

My questions:

We inherited half and paid for the rest. Can we claim this?

At the worst, we should have a claim for half of the outstanding debt that we settled, but we would need forensic accounting to show that debt in primary bond was due to purchase of secondary home?

Can we claim for half of rental income he was receiving over course of 6 years?

We have spnet too much on the house and so will not agree to him buying us out. What are the alternaives?

How can we force his hand to bring the deed and sign papers for transfer so that the estate closure is not being delayed?

If i take half of debt we paid and consider prime interest rate, plus half of rental income he received, this equally half the current value of the house. Could we justify that he must give us the half of the property he owns in lieu of this amount?

He is extremely litigous, unscrupulous and irrational. We are in need of a failsafe plan as we have already spent too much on legal fees over the years with no results.

Best,

Nicole

Posted by Att. Patrick on 19-03-2019 16:49:37

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship.

Do you mind if I take a moment to review your question? I will come back to you shortly!

CaseLaw

Posted by Att. Patrick on 19-03-2019 17:08:50

Hi there again Nicole,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

This is a request for information so that I can understand your question and give you a proper answer.

If your Mom and her husband (I'm assuming, not your Dad) were married in community of property, then legally, your Mom would have owned half of everything and her husband would have owned half of everything. It doesn't matter who paid for what. That's the nature of being married in community of property.

On your Mom's death, she would be entitled to leave her half of the entire estate (primary house, secondary house, car, etc) to whoever she wants. Her husband would remain the owner of his half of the entire estate (primary house, secondary house, car, etc).

Out of interest, who did your Mom leave her half of the entire estate to?  It is a little unclear because you said "We inherited half and paid for the rest."  What does that mean? Half of what?

Did you Mom leave a Will, or did she die without a Will?  I'm assuming that she left a Will.

If your Mom left her half of the estate to you (let us say "the kids"), then you guys would have inherited just her half of the entire estate. Typically what parties in that instance do is to enter into a redistribution agreement in terms whereof her husband would basically "swop" his half of the primary house with your half of the secondary house. i.e. you guys get the whole primary house; he gets the whole of the secondary house.

When you say that you guys settled the bond, what you really did was to settle a liability on behalf of the joint estate. That means that the estate (the executor) needs to repay you guys for the amount that you settled. Your claim for repayment does not necessarily lie against your late Mom's husband, but rather against the estate.

The executor would have a claim against her husband for a portion of the rental. I say that because your Mom's estate owns 50% of the secondary house, and that means that the estate is due 50% of the rental income. Here, I'm assuming that the primary house has NOT yet been transferred to you guys, and that it is still registered in your Mom's name and her husband's name.

The executor could appoint an accountant to assist in the calculations - if he wanted.

Also, the executor could sue your late Mom's husband and force him to come in and sign transfer documents, etc. A court would order him to sign the documents, failing which the sheriff of the court could sign them on his behalf. It also sounds as if the executor perhaps is not doing his job properly? (Just putting this out there)  The executor needs to FIGHT to wind up the estate, and that often means getting sticky with heirs and co-owners. As long as your exeuctor is doing that, that's fine. If he is sitting back doing nothing, then you have an added problem.

The primary issue here is that because it is a joint estate (i.e. married in community of property) the executor needs to get the buy-in from your late Mom's husband.  He does, after all, own 50% of everything.

If you've spent loads of money on legal fees over the years, I'm wondering why exactly and what was achieved by it. It sounds to me as if your problem is actually multifaceted and you might need to sit down with an attorney (in person) with all of the papers and actually go through it step by step.

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Dear Patrick,

Just some poitns of clairty:

They were married anti nuptual without accrual
She left everything to us the kids. "We inherited half and paid for the rest" - here i refer to the secondary house. We inherited her 50%. However the debt that remained in the estate due to bond of primary home, existed because of the money she paid in the meantime to settle the secondary home while waiting for him to pay his half back to her.
He only had his name on the deed of the secondary house because he was going to pay for his half
There was no liquidity in the estate at time of passing.

"If you've spent loads of money on legal fees over the years, I'm wondering why exactly and what was achieved by it. It sounds to me as if your problem is actually multifaceted and you might need to sit down with an attorney (in person) with all of the papers and actually go through it step by step" - this is what we did in trying to sort out the debts owed by him, for which we have witnesses but no paperwork as he removed everything 3 weeks after my mom passed.

If it can, through forensic accounting, be shown that the money owed from primary bond was there because of the payment of the secondary home (and since my mom had cancer she could not raise a new bond for secondary home), and since the estate had no liquidity to settle, could it not be proven that as co-owners (estate + him), each owner should be held liable for half of the debt?

Posted by Att. Patrick on 27-03-2019 15:48:47

Hi there,

Okay, so they were married out of community of property, without any accrual system applying. That means that your Mom would have her own estate, and her husband would have his own estate. i.e. there is no sharing of assets. What is mine is mine, what is yours is yours.

You kids would have therefore inherited her estate, which included her primary house.

You would also have inherited her 50% of the second property. So, in effect, her husband will be a 50% owner in the second property, and you kids would collectively be the other 50% owner.

The estate would therefore have a claim against her husband for the money which your Mom loaned him so that he could purchase his 50% of the second property. The fact that your Mom needed to take the money out of her bond for the primary house, doesn't matter. It is just a simple loan from your Mom to her husband - and it is this loan which her estate needs to claim back.

If only his name is on the title deed for the second property, the executor of your Mom's estate will need to apply to court to have this rectified so that your Mom's name (or at least your Mom's estate's name) is recorded as a 50% owner of the second property. Once that has happened, the executor can transfer your Mom's 50% of the second property to you kids.

I don't think that there is any legal link between your Mom drawing down on her bond for the primary house, to pay for the second property. There might be an accounting link - but there is no legal link. Where your Mom got the money doesn't matter. What matters is that your Mom loaned her husband a large sum of money to pay for 50% of the second property, and your Mom's executor now needs to call up this loan.