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What happens when a promise for inheritance is made but is not reflected in the Will?



It is common for individuals to make promises to others in regards to asset and estate inheritances. People can make life-changing decisions based on these promises. However, these promises are not always reflected in their Wills which has caused many Estate disputes.


If a plaintiff is not eligible under the Administration and Probate Act 1958 family provision claims, they then can seek “equitable proprietary estoppel”. This is an action which may be taken to enforce a promise or promises made to the plaintiff, where the plaintiff has acted in reliance on that promise and suffered detriment as a result.


In this blog post, we review the key learnings of the Moore v Aubusson [2020] NSWSC 1466 case. This case explores the issue of estate inheritance following the death of the owner.


Preliminary information


The case was heard at the Supreme Court of New South Wales with Chief Justice Ward in Equity presiding. The Plaintiffs are Mr David Moore and his partner, Ms Douwine Andreasen. The Defendant is Mr James Brendan Aubusson, Executor named in the deceased’s Will.


Summary of key facts


The deceased, Ms Barbara Murphy, was a widow with no children. The Plaintiffs were neighbours of the deceased. According to the Plaintiffs, they had a close relationship with the deceased. As such, they made an arrangement to look after her as she grew older. In return, the deceased promised to look after the Plaintiffs in her Will. The deceased’s Will however, left only $25,000 to Mr Moore and the residue was divided equally between the deceased’s siblings. The Plaintiffs allege that this promise made was in reference to the whole of the deceased’s Estate.


Issues for consideration


The Plaintiffs were seeking a declaration that the executor holds the whole of the deceased’s estate on trust for them in equal share as tenants in common and an order that the estate be transferred to them. The Plaintiffs’ claim to the deceased’s estate was made on two bases: in contract and by way of a claim in Estoppel.


The findings


The court found that the Plaintiffs had reached an understanding with the deceased. However, this understanding did not amount to a contract. However, the court found that the understanding did amount to Proprietary Estoppel. This was concluded on the basis that the promise was sufficiently clear for a reasonable expectation to be created, that the Plaintiffs acted on reliance of this representation, and that it would be unconscionable not to grant the Plaintiffs ownership of the deceased’s property as they took on the burden of care for the deceased in reliance of the promise made.


The orders


After taking into account all necessary findings, the court declared that the defendants hold the properties on trust for the Plaintiffs in equal shares as tenants in common. The court also ordered the Defendant to transfer the properties to the Plaintiffs in equal shares as tenants in common within 28 days. Additionally, the court directed the parties to file brief written submissions as to costs within 7 days.


In this case of Moore v Aubusson, Estoppel took priority over the written Will. However, courts may not always take the same approach. This case demonstrates the importance of creating a Will and keeping it up-to-date in order to prevent the emergence of any unpredictable issues.

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