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The Timeline of a Family Provision Claim
Featuring: Senior Associate, April Kennedy

Broken promises – making a claim when a promise hasn’t materialised in someone’s Will

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A Sydney couple were promised their elderly neighbour’s multimillion-dollar estate in exchange for lifetime care and a change of renovation plans to preserve her waterfront views. However, their neighbour did not honour her promise and changed her Will shortly prior to her death, leaving them $25,000. After challenging the estate and enduring a long court battle, the couple inherited two waterfront properties worth $9 million. Attwood Marshall Lawyers Estate Litigation Senior Associate, April Kennedy, discusses the case.

The promise

In 1999, Mr Moore and Ms Andreasen purchased a property next door to Ms Murphy (the deceased) which they referred to as “the worst house in the best street”. They bought their property with the intention of renovating and selling it for a profit.

Ms Murphy had been living alone at her property in the upstairs unit for many years. She had no immediate family nearby. The couple developed a close relationship with Ms Murphy. When Ms Murphy learnt about the couple’s intention to renovate their home, she indicated to them that she would be devastated to lose her waterfront views.

In 2005, Ms Murphy made a promise to Mr Moore and Ms Andreasen to gift her multi-million-dollar Sydney estate to them under the following conditions:

  1. That they cared for her for the remainder of her life so Ms Murphy could avoid moving into an aged care facility;
  2. Mr Moore and Ms Andreasen would change their renovation plans to allow Ms Murphy to keep her waterfront views.

In exchange, Ms Murphy promised the couple that she would prepare a Will leaving them her $12 million estate which consisted of the two waterfront properties as well as other assets.

The couple agreed and they performed their side of the agreement. They said that they treated Ms Murphy as part of their own family for approximately 10 years and altered their renovation plans to preserve the waterfront views enjoyed by Ms Murphy.

There was no written agreement put in place.

The Will and Court proceedings

In 2014, Ms Murphy changed her Will unexpectedly. Her new Will left her entire estate equally between her brother and sister. Her neighbours, Mr Moore and Ms Andreasen were left a cash legacy of $25,000.

In January 2015, Ms Murphy died at home. Mr Moore and Ms Andreasen only became aware of the changes Ms Murphy had made to her Will after she passed away. Following Ms Murphy’s death, they tried to reach an agreement with the deceased’s brother and sister which ultimately failed.

On 24 September 2015, the couple filed an estoppel claim in the NSW Supreme Court arguing that the deceased’s two waterfront properties should be transferred to them based on the promise made by Ms Murphy. Many family members and friends of both Ms Murphy and the couple gave evidence that they were told of the promise.

After a lengthy hearing held over nine days, Chief Judge Ward ruled in favour of the couple, stating that she was satisfied that there was “a sufficiently clear representation by the deceased to the effect that, if the plaintiffs (the couple) looked after her (in the way in which Ms Andreasen had been looking after her own mother), so that the deceased could stay in her own home for as long as possible, then the deceased would leave the Louisa Rd properties to them.”

There was enough evidence to establish that the couple relied on Ms Murphy’s testamentary promise at their own financial and personal expense. On this basis, the Court ordered that the two properties be transferred to the couple.

What is equitable estoppel?

This type of claim, referred to as “equitable proprietary estoppel” or “promissory estoppel”, is a growing area in estate litigation. In layman’s terms, it is an action to enforce a promise made by the deceased to another person, where that person has acted to their detriment relying on that promise and suffered loss as a result.

It is fairly common in cases involving disputes over family farms, where a child works on their parents’ farm for years for little or no remuneration, in reliance upon promises made by the parents that that child would eventually inherit the farm. It is also becoming prevalent in circumstances where the person making the claim is not eligible under family provision legislation i.e. siblings, neighbours or friends.

This area of law has a long history in the development of principles to alleviate the harsh consequences of where there is no written contract in place, but the parties involved conduct themselves and say things that support a contract being inferred or an existing written contract being varied. In the famous 1947 English Kings Bench Division of the High Court case of Central London Property Trust Ltd v High Trees House Ltd, Judge Denning (as he then was) created the modern doctrine of promissory estoppel by extending its operation to a lease of flats in Clapham, London where the rent had been reduced by 50% during the second World War. Previously, the harsh application of contract law prevented any such variations unless they were in writing and by Deed. Judge Denning went on to become Lord Denning and Master of the Rolls in the Court of Appeal and was renowned as a huge agent for change in the law in England during a distinguished and, at times, controversial career.

What needs to be proven to establish an equitable estoppel?

The person enforcing the promise needs to prove the following:

  1. The deceased made a promise to them during their lifetime;
  2. They relied on the promise;
  3. They suffered loss or detriment as a consequence of relying on the promise, and that the loss they suffered was reasonable in the circumstances; and

Based on their reliance on the promise, it would be unconscionable if the deceased’s estate was not bound by the promise.

How can Attwood Marshall Lawyers help?

Attwood Marshall Lawyers have one of the largest and most experienced estate litigation teams in Queensland, with senior lawyers who practice exclusively in this complex area of law.

It is our renowned intent to help people; we are here to help you get what you are fairly entitled to.

Most estate litigation cases are accepted on a ‘no win, no fee’ or deferred payment basis. There are no costs required upfront to commence your claim (subject to our determination of you having reasonable prospects of success).

To arrange a free initial consultation please contact Estate Litigation Department Manager, Amanda Heather, on 1800 621 071, direct line 07 5506 8245 or email aheather@attwoodmarshall.com.au

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