When the children don't want the family home sold

The starting point: it is your home and your decision

An owner with legal capacity can sell their property, at the price they accept, for the reasons that matter to them. A child has no legal right to be consulted, no right of veto, and no interest in the house simply because they expect to inherit it. An expected inheritance is not a legal interest in anything — a will can be changed at any time while you have capacity, and the money can be spent.

That is the law. What makes these matters difficult is that a determined child does not need to win to cause damage. A caveat lodged the week before settlement, or a letter to your solicitor alleging you no longer understand what you are doing, can stop a sale in its tracks and put you in breach of a contract you have already signed.

So the work is preventative. Where a family disagreement is foreseeable, the sale is prepared so that the objections have nowhere to land.

Why this is happening more often

Three pressures have converged. People are living longer and the cost of care has risen, so the home is being sold to fund the next stage of life rather than being kept until death. Housing costs have pushed adult children back into the family home, or into a granny flat or an extension on it, often with money contributed and nothing in writing. And the size of the average estate has made an inheritance a genuine financial plan for a generation that cannot otherwise buy.

The result is a family where the parent sees a home to sell and the children see the deposit on their own house evaporating. We have a name for the second half of that: inheritance impatience. It is rarely malicious. It is usually fear, dressed up as concern about whether Mum should really be making this decision.

• A child living in the home who will have nowhere to go after settlement
• A child who paid for a granny flat, an extension or renovations on a promise
• A child who has been the carer and feels the home is morally theirs
• A child worried the proceeds will be spent on care, a new partner or another sibling
• Blended families where the children's claim is against a step-parent, not the parent

What the children can actually do — and what they can't

There are only a handful of levers, and most of them fail if the sale has been prepared properly. Knowing which is being pulled tells you how serious the problem is.

• Lodge a caveat over the title. Only available if the child claims an actual equitable interest — money contributed to the purchase, or a promise relied on to their detriment. A caveat lodged without a proper interest can be removed, and the caveator can be ordered to pay compensation for the loss it causes.
• Allege the parent lacks capacity. Usually raised as an application to QCAT for a guardianship or administration order. If an administrator is appointed, the decision about the house moves out of the parent's hands.
• Claim an interest as a contributor or occupier. A constructive trust, a proprietary estoppel, or a claim under the granny flat arrangements provisions of the Property Law Act where the child moved in and paid on the strength of a family agreement.
• Refuse to move out. A child in occupation with no lease is a licensee, and the licence can be terminated — but if they stay, vacant possession at settlement becomes the seller's breach, not theirs.
• Pressure the parent directly. Not a legal remedy, but the most common one. Where it crosses into coercion it becomes elder abuse, and the transaction needs to be documented very carefully.

The capacity allegation, and how to answer it before it is made

In Queensland capacity is presumed for an adult, and it is decision-specific: the question is whether you understand the nature and effect of selling this house at this time, not whether you are forgetful or elderly. An objecting child does not have to prove much to cause delay — an application to QCAT can be made cheaply and the mere existence of it will unsettle a buyer.

The answer is evidence created before the argument starts. Where we can see the risk, we take instructions from the seller alone, in person, with no family member in the room; we record why the sale is being made and what the plan for the proceeds is, in the seller's own words; and where there is any question at all we arrange a capacity assessment from the general practitioner or a geriatrician at the time of the decision, not months later.

A contemporaneous file that shows an informed, independent, well-reasoned decision is close to unanswerable. A file that shows an adult child sitting in on the meeting and doing the talking is the opposite.

When a child has actually contributed money

The hardest cases are not the greedy ones. They are the child who sold their own unit, moved in to look after Dad, and put $180,000 into building the extension out the back because everyone agreed the house would be theirs one day. Nothing was signed. If Dad now needs to sell to fund a place in care, that child may well have a real claim — and pretending otherwise makes the litigation more likely, not less.

Queensland's granny flat arrangement provisions and the general law of constructive trusts and estoppel both exist for exactly this situation. The practical resolution is nearly always a negotiated one: the contribution is quantified, the sale proceeds are adjusted or a sum is held in trust at settlement, and the arrangement is documented so it cannot be reopened later.

That is a conveyancing and elder law problem solved in a fortnight. Litigated, it is two years and a substantial part of the sale proceeds.

• Identify the contribution and get it valued before the property is listed
• Deal with it by written agreement, not by a handshake and hope
• Where agreement is not reached, hold the disputed sum in trust so the sale can still settle
• Record the outcome so it does not resurface as an estate claim later

If a caveat is already on the title

A caveat is the emergency. It stops registration of the transfer, which means settlement cannot happen, which means the seller is the party in default under the contract. The buyer can terminate, keep their remedies and sue for damages, and none of that is the caveator's problem.

There are three routes off the title: persuade the caveator to withdraw it, serve a notice requiring them to start proceedings to establish their interest within fourteen days or the caveat lapses, or apply to the Supreme Court to remove it. The lapsing notice is usually the fastest and the cheapest, and it is remarkably effective against a caveat that was lodged to create leverage rather than to protect a genuine interest.

Time matters enormously here. If a caveat appears with a settlement date approaching, the buyer's solicitor should be told immediately and an extension negotiated in writing before the seller is in breach.

How we help you through it

Our job in these matters is to keep an emotional family situation inside a conveyancing file and out of a courtroom. In practice that means preparing the sale so that the predictable objections cannot succeed, and dealing with the family directly so the seller does not have to.

• Independent instructions taken from you alone, and a file that records your reasons in your own words
• A capacity assessment arranged at the time of the decision, where there is any prospect of a challenge
• An early title search to find a caveat before a contract is signed, not after
• Where a child has contributed, the contribution quantified and documented before listing
• Correspondence with the objecting child handled by us, which takes the argument out of the family
• Contract dates and special conditions structured to absorb a delay, so a caveat does not put you in breach
• Lapsing notices or Supreme Court removal applications where a caveat is lodged without a proper interest
• Coordination with the retirement village or aged care contract so the money is there when it is needed
• Referrals to a financial adviser on the aged care means-tested fee consequences of the sale proceeds

If you are the adult child reading this

There is a legitimate version of this concern. If a parent is being pressured by someone else, is genuinely no longer able to understand the transaction, or is about to sell to a relative for well under value, those are proper matters to raise and there are proper ways to raise them.

What is not legitimate is lodging a caveat to stop a sale you simply disagree with. Queensland courts have consistently ordered compensation against caveators without a genuine interest, and the costs of a failed application can be substantial. If you believe you have a real claim, get it advised on and quantified — and put it to the family before a contract exists, when it can still be resolved cheaply.

Selling the family home when the children object — common questions