Property Law Assignment: Deceased Estates and Land Transfer Analysis

This document provides comprehensive solutions to a property law assignment centered around deceased estates. The assignment addresses key legal considerations, including the holding of real property in trust from the time of death until distribution to beneficiaries, as well as the roles of executors and administrators. It explores qualifications to the general rule of property disposal, specifically encumbrances and equitable titles. The assignment further examines the implications of Section 32 disclosure statements in land sales, advising on contractual conditions and buyer rights. Finally, it analyzes a scenario involving a gift of land, the application of donatio mortis causa, and the potential for specific performance against an executor, considering the girlfriend's rights. The solutions provide detailed legal reasoning and application of relevant laws.

In regards to Deceased Estates, what needs to be considered in relation to – Holding of Real
property?
ANSWER
The deceased estate of a person is inclusive of real estates, money, shares, accounts,
personal possessions, etc. The assets including real property of the deceased are held in a
trust from the time he dies till the time property is not transferred to his beneficiaries.
The beneficiaries are persons who are nominated in the will of the deceased person.
The property is distributed by the executor mentioned in the will or the administrator
appointed by the court. Therefore, it can be said that the real property of a deceased is held in
trust by the time it is officially distributed.
Q54. As a general rule a person may freely dispose of property to which they have title, and a
person may purchase property, which is offered for sale. There are 2 qualifications to this
general rule, explain them.
ANSWER
The qualifications to the general rule under which person may not be allowed to
dispose off property are as follows:
 Firstly, if the title of the property is under encumbrances, which means that the
property is under burden, obstruction or impediment which diminishes the
value of property and could block a sell agreement as a person having any
charge on the property could take action any time. Also, the potential buyer
will find about it while conducting the title search.
 Secondly, if one does not possess legal title over a property but only a n
equitable or beneficial title, as the legal title gives one the actual title over a
property while the equitable title only creates a financial benefit on the
property.
Q19. Harry purchased land in Victoria. The Section 32 disclosure statement contained several
“strict” contractual conditions, which were not incorporated into the Contract Note. Advise
Harry briefly if he is bound by the contractual conditions in the Section 32.
ANSWER
The section 32 of the Sale of Land Act in Victoria states the responsibility of a seller
to disclose certain details about the property which the buyer could not know on mere
inspection and he has a right to know. The seller is bound to provide the buyer with a contract
before the contract is signed but if the buyer has not given section 32 statement then the
buyer has a right to walk away form the deal.
In the given case Harry is entitled to have a Section 32 statement either incorporated
in the contract or separately. As the contract note does not specify the details of section 32
Harry has two options, either he can make enquiry with the seller in this regard or he can
walk away from the contract.
Q22. Sam, as a sole registered proprietor, wished to make a gift of a valuable block of
unencumbered land to his girlfriend. Sam promised his girlfriend he would transfer the land

to her at the end of the month. At the end of the month, Sam wrote a note to his girlfriend,
which (omitting irrelevant parts) stated: “I promised I would gift to you the land and I now do
so”, with a box of expensive chocolates.
Attached to the note was undated T1 Transfer of Land, properly and accurately completed,
and which Sam had signed in the presence of an independent adult witness. The next
morning, as Sam was driving home, he fell asleep and his car collided with a tram. After the
funeral, Sam’s girlfriend wished to register the Transfer of Land after the payment of stamp
duty. Advise her if she may register or, in the alternative, if she instead proceeded with an
action for specific performance against the executor of Sam’s estate, her chances of success.
ANSWER
In case of death of the donor, Sam, the girlfriend can register the gift of property as
the principle of donatio mortis causa applies. The gift was made, signed and delivered by the
donor before he died in an accident. Also, she has fulfilled the legal formality of paying the
stamp duty and therefore, entitled to the gift.
Considering, and alternate view the executor after receiving the grant of probate form
the court can distribute the assets of the deceased person's estate. The whole estate goes to the
spouse if the deceased has no children and according to the Intestacy Act, 2010. And, a
spouse includes a partner who was a party to registered personal relationship or a partner who
was a party of a significant relationship immediately before the death of the intestate.
Therefore, being in a significant relationship immediately before death of Sam, his girlfriend
would succeed in the claim.