The dangers of not making testamentary plans clear and in writing during your lifetime
A very recent case of Moore v Aubusson  NSWSC 1446 illustrates the dangers of not making your testamentary plans clear and in writing during your lifetime.
It was found that a verbal promise made by Ms Barbara Murphy (deceased) to her neighbours prior to her death substantially supplanted the contents of her Will. The promise resulted in the transfer of two properties on Louisa Road, Birchgrove to Mr Moore and Ms Andreasen worth approximately $9 million.
Mr Moore and Ms Andreasen were the neighbours of the deceased since the early 2000s and developed a close friendship with her. She was a widow and had no children. Her siblings were older than her and could not look after her as she aged.
The neighbours alleged that in 2004, the deceased made an arrangement with them to the effect that they would look after her as she grew older, they would not move away and also that they would not implement their proposed building works, which would have blocked the deceased’s view of the Sydney Harbour, until after her death. They alleged that this was in exchange for a promise that she would leave them the entirety of her Estate valued at approximately $11.7 million.
Ms Murphy died in 2015. Mr Moore and Ms Andreasen were notified that the deceased left her estate in equal shares to her siblings, and only a legacy of $25,000 to Mr Moore. An agreement for redistribution with Ms Murphy’s siblings could not be reached and proceedings were commenced in the Supreme Court.
Family members and friends of Ms Murphy, Mr Moore and Ms Andreasen gave evidence that they were informed of the arrangement by one or more of the parties. The plaintiff’s evidence showed that they devoted significant hours each week caring for Ms Murphy. They maintained the properties, mowed the lawns, managed tenants and rent, organised food, companionship, social interaction and escorting her to appointments.
Decision by the Supreme Court of New South Wales
The Court found that an understanding was reached between the deceased and her neighbours in relation to the deceased’s two properties on Louisa Road, Birchgrove. However it was found that the arrangement did not include a promise not to block out the deceased’s water views (forgoing their development opportunity) or that they would not move away.
It was held that the care and support that her neighbours provided to her over the last decade of her lifetime at the expense of their own commitments constituted a detrimental reliance on the deceased’s promise by the plaintiffs. The elements of a cause of action known as proprietary estoppel were established by the plaintiffs and it was ordered that the two properties be transferred to Mr Moore and Ms Andreasen within 28 days. The Court did not find that the total estate was to be transferred to the plaintiffs but the effect of the judgment was that the larger part of the estate was provided to them.
The above case demonstrates the importance of ensuring your Estate Planning documents are effective to implement your testamentary intentions. This assists with the swift and simple administration of your Estate.
CEO & Accredited Specialist in Family / De Facto Law
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