We are commonly asked, what happens if I do not update my Will?

A recent decision in the Supreme Court of New South Wales highlights the importance of having an up to date Will.

The case in Moore v Aubusson [2020] NSWSC 1466 (23 October 2020) could have been wholly avoided if the deceased had updated her Will to reflect an agreement that she made with her neighbours.

This case demonstrates that an agreement you enter into after your make your Will may have a significant impact on the ease in which your executors are able to administer your estate and who may have a claim to your estate.

Case Summary

Her Honour, Chief Justice Ward decided that, despite the deceased having a valid legal Will, a subsequent verbal agreement between the deceased and her neighbours, overrode the provisions of the Will and required the executors of her estate to transfer the deceased’s properties to those neighbours.

Background

Prior to her death in 2015, the late Ms Barbara Murphy (the deceased) was the owner of two adjoining properties in Louisa Road, Birchgrove, New South Wales. These properties comprised part of the deceased’s estate. Each of the deceased’s two properties comprised two units. The deceased occupied the upstairs unit, which had views of Sydney Harbour, and she had rented out the remaining three units.

The plaintiffs in the case, Mr David Moore and Ms Douwine Andreasen, moved into the property adjoining the deceased in 2001 with the intention of redeveloping the property. The deceased was not happy with the plaintiff’s proposal to develop their property as the development would have obstructed her views of the Sydney Harbour.

This was not the first time that the deceased had been unhappy with redevelopment on her street as she had not only lodged objections to similar works with the Leichhardt Council (now the Inner West Council) but had been also been ordered off a neighbouring site after attempting to enter that site to check its compliance with the approved plans herself.

In their application to the Court, the plaintiffs say, that the deceased promised to leave them her whole estate in return for them looking after her for her remining years of life and for them agreeing not to undertake their proposed building works to the extent that those works would impact the view from the deceased’s property.

The plaintiffs say that they performed their side of the agreement but that the deceased did not leave her estate to the plaintiffs under her Will.

The defendant, who is the sole surviving executor of the deceased, Mr James Aubusson argued that the claims against the deceased’s estate are founded on alleged oral representations of the deceased, which only the deceased could have denied.

Alleged Agreement

The plaintiffs alleged that the deceased had told them that she would update her Will to leave everything to them, if, they agreed to look after her in her final years at home and not undertake their development to obstruct her views. This was agreed to verbally by the plaintiffs however, the deceased’s Will was never updated to reflect this.

The last written Will left her estate equally to her brother, Don, and her sister, Marion, with provision, if either or both of those siblings should pass before her, for the their shares to be divided equally between Royal Prince Alfred Hospital and St Vincent’s Hospital.

The plaintiffs’ evidence suggested that they each devoted a significant number of hours each week overseeing and supervising the deceased. These tasks included mowing lawns, maintaining the properties, managing tenants and rental payments, providing companionship & social interaction, cooking & arranging home delivered meals, managing financial affairs, and escorting her to medical and non-medical appointments.

The defendants argued that these tasks were significant exaggeration and any assistance provided were not more than that of a concerned and caring neighbour.

The verbal agreement, and the subsequent actions taken by the plaintiffs after the alleged agreement are extensively discussed in the decision.

Decision

Despite conflicting evidence in the case, her Honour accepted that here was an understanding between the plaintiffs and the deceased that, if they looked after her as she aged (and helped her to remain in her own home), then the deceased would leave her properties at Louisa Road, Birchgrove to the plaintiffs.

The plaintiffs argued their entitlement to the estate of the deceased on two grounds. In contract and estoppel.

Contract

The plaintiffs alleged that an oral contract had been entered into with the deceased and that the plaintiff’s obligations had been met by caring for the deceased and not undertaking their development. The question before the Court was whether the terms of the alleged oral contract were sufficiently certain to constitute a binding and enforceable contract.

Her Honour accepted that an oral contract may be binding on the parties, and that it is not necessary for the language used to be precise (or for all the contractual details to be considered or agreed) in order for an verbal arrangement of the kind alleged by the plaintiffs to be contractually binding.

Despite this, her Honour was not persuaded that the terms of the purported contractual arrangement were disclosed with the sufficient degree of certainty (or perhaps any certainty) and therefore concluded that the plaintiffs had failed to establish a claim in contract.

Estoppel

Her Honour was satisfied that there was a sufficiently clear representation by the deceased to the effect that, if the plaintiffs looked after her, so that the deceased could stay in her own home for as long as possible, then the deceased would leave the Louisa Road properties to them.

The elements of proprietary estoppel were established by the plaintiffs as they demonstrated that they  had relied on the deceased’s representations, to their detriment, and her Honour therefore found that it was unconscionable for the deceased to resile from the testamentary promises.

Orders

Her Honour declared that the defendant holds the properties at Louisa Road, Birchgrove on trust for the plaintiffs in equal shares as tenants in common and that the defendant must transfer the properties to the plaintiffs within 28 days.

Conclusion

So, what happens if I do not update my Will?

The case highlights the importance of maintaining an up to date valid Will. If your Will is out of date, it may become disputed.

A disputed Will is a complex, time consuming and costly task. If your circumstances have changed, you should consider updating your Will. Remember, once your Will has been updated, it is important to let your executors and loved ones know.

Our LifeDocs Will allows you to gift property and money to your beneficiaries. Make sure your Will reflects your wishes.

Stay safe and well
LifeDocs Team