Introduction
Many older people live in homes that are legally owned by someone other than themselves and face eviction from that home if the owner dies or goes into aged care.
Who owns your home?
You may live with a spouse or partner who has children from a previous relationship. The home you live in may be in your partner’s name only.
You may find that when your partner dies or has to go into aged care, the adult children from his or her previous marriage want you out of the home you have been living in.
If the house you have been living in your whole life is owned by another family member – such as a sibling, they may leave that property to someone other than you in their will if they die.
This can be very distressing if you have nowhere else to go or if you can’t afford to live anywhere else.
This brochure tells you what you can do to avoid this happening to you. It also tells you what you may be able to do if it does happen to you or someone you know.
If your partner has died
If your partner has died and has left a will leaving the home to their children from a previous relationship, the children become the new legal owners of the property.
They might want to sell the house as soon as possible.
If your partner has gone into aged care
If your partner has recently gone into an aged care facility, their children might be telling you to leave because the home you live in must be sold to pay for the aged care.
If your partner has lost capacity to make these decisions, other family members might be making those decisions and telling you to get out of the house as it is registered in your partner’s name.
If this happens it is important to get legal advice. You may have options. For information on who to call, see the Where can I get help more help? section below.
Prevention is better than cure
It is best to talk with your spouse, partner or family member about what might happen to you if the person who owns the home you live in dies or goes into aged care.
Your partner may want to make sure the property is left to his or her children, but may not have thought about the fact that you could be left homeless after he or she dies. For example, they may intend that you remain in the home for the rest of your life, with their children only inheriting the property after you die, but they may not have updated their will to make sure that will happen. While these conversations can be difficult they are very important to make sure that your interests are protected before it is too late.
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Peter's story
Alice was Peter’s second wife. Alice had two children from her first marriage. Peter moved into Alice’s house when they married twenty years ago. The house was registered in Alice’s name.
Alice was diagnosed with dementia and eventually had to move into an aged care facility. When Alice was first diagnosed with dementia she appointed her children as her Enduring Power of Attorney and Enduring Guardian as she was worried it would be too much for Peter.
When Alice moved into aged care her children told Peter he had to move out of the house as it needed to be sold to fund their mother’s care.
Peter got some legal advice which helped him negotiate an agreement with his stepchildren.
The best of both worlds
You can take steps to make sure that your interests are protected without other people losing out on their inheritance. For example:
Your name can be added to the certificate of title to the property as a joint tenant. This means that if your partner dies the property will automatically pass to you. You can then make a will which leaves the home to his or her children when you die.
Your name can be added to the certificate of title to the property as a tenant in common. This means that you own a share of the property and your partner can only leave his or her share to the children. However they could still try to have the property sold and the proceeds of the sale shared between you.
You can have a life interest registered on the certificate of title. This means that when your partner dies you will have the legal right to stay living in the home for the rest of your life or until you choose to leave.
Your partner can state in their will that you may stay in the property for the rest of your life or for as long as you like. This is also called giving you a life interest, and means that their children will only inherit the property after you die, decide to leave or go into aged care.
A lawyer can advise you and your partner (separately or together) about the best option for you, your partner and other members of the family.
They want me out
If you and your partner have not discussed these issues, and your interests have not been protected, the law may be able to help if you are told you need to leave your home. You may have what the law calls an ‘equitable interest’ in the property even if you are not the legal owner. You will have had to have made financial or other contributions to the property on the understanding that you would be able to live in the house for life, or be entitled to some money if the property was sold. You can ask the Supreme Court to order that your interest in the property be recognised and that you are financially compensated.
The law in this area can be complex and you would need legal advice before you considered legal action.
You may be able to challenge your spouse or partner’s will. This is called a ‘family provision claim’ and must be made within 12 months of the date of death. The Supreme Court can change someone’s will if it thinks that you were not properly looked after by their will. The court will look at things like:
- any contribution you have made to the deceased person’s property and welfare
- your age and any physical or mental disability
- your financial resources (including earning capacity) and your current and future financial needs.
- the nature and length of your relationship
- whether you were being financially looked after by your partner, and
- anything else the court thinks is relevant.
Using the law in these ways is expensive and you can never be sure of the outcome, so it is far better to try to sort things out while the owner of the property is still alive.
Remember – prevention is better than cure, and less emotionally and financially costly.
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Eleni's story
Eleni, 71, was married to Sy for 17 years. It was her first marriage but Sy’s second marriage.
Sy had two adult children from his first marriage. Sy owned the home in his own name. They had never talked about what would happen to Eleni if Sy died.
When he died Eleni discovered that Sy had made a will which left the house they shared to his two children in equal shares. His children decided to sell the house and told Eleni that she had four months to find somewhere else to live.
Eleni’s only option was to start legal action to challenge Sy’s will. If she had discussed her situation with Sy and a lawyer before Sy died, she may have been able to prevent this from happening.
Where can I get more help?
| Organisation | Information | Contact details |
|---|---|---|
| Seniors Rights Service | Provides free legal advice and assistance for older people in a range of areas of law. | Visit the Seniors Rights Service website or call 1800 424 079. |
| LawAccess NSW | LawAccess NSW is a free information service run by Legal Aid NSW. They provide legal information and referrals for people with a legal problem in NSW. | Chat to our team via web chat or by calling 1300 888 529 between 9am and 5pm, Monday to Friday (excluding public holidays). |
| Ageing and Disability Abuse Helpline | Provides confidential information, support and referrals for people who have experienced, witnessed or suspect the abuse of an older person living in the community. | Visit the Ageing and Disability Abuse Helpline website or call 1800 628 221 between 9am to 4pm. |
Updated December 2024