August 27, 2017 |

NSW Court Rectifies Fraud in Will Contest

From 1992 until 2006 the plaintiff, together with his de facto were the registered proprietors, as joint tenants, of a property in Sydney. The plaintiff and the deceased had lived together for about 38 years. The plaintiff paid a deposit of $100,000 and obtained a mortgage of $150,000 to complete the purchase. The plaintiff was able, in 1993, to discharge the mortgage as a result of a cash advance from his father. The title deeds then held by the plaintiff and his de facto in their home in a safe.

It 2006 the de deceased’s severed the joint tenancy without providing any notice to the plaintiff. Late 2006 the deceased advised her daughter, that she had severed her joint tenancy with the plaintiff and actively concealed that fact from him and asked her in turn to keep that fact from the plaintiff as well. The daughter, however, informed the plaintiff shortly after the death of the deceased that the joint tenancy had been severed in 2006 and that her mother had left a will dated 11 August 1980 in which she left the whole of her estate to her.

After the death of the deceased the plaintiff and the daughter reached an agreement to have the property returned to the original entity, joint tenants. To give legal effect to the agreement they needed the approval of the court to change the entity and the provision in the will.

The court was asked to make certain declarations by consent of the parties. The court has a very wide discretion to make declaratory orders and in its discretion, may determine that it is inappropriate to make a declaration. Because the matter is one of the exercise of discretion, special facts in a particular case may mean that the discretion is exercised other than in accordance with principle.

The court held there were four propositions at law. First, declarations are somewhat of a rarity when made by consent. Secondly, the making of a declaration is a judicial act determining and pronouncing a legal right. Thirdly, as an order of the court, a declaration binds the parties to the proceedings but, because the impact of a declaration may not be confined to the parties, in doing so a court needs to take into account therefore the possible consequences of any declaratory relief granted. Fourthly, in circumstances where the court is satisfied the declaration is confined to the private rights between the various parties, it may be appropriate to make the orders sought.

The court was satisfied that the deceased unilaterally severed the joint tenancy without notice to the plaintiff and actively concealed that severance from him. Her conduct was fraudulent and the court made the orders sought by the two parties.

Eric Butler

doyles STEP Law Society of New South Wales Queensland Law Society Law Institute Victoria


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Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 13, 111 Elizabeth Street ,
Sydney NSW 2000

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Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 11, 456 Lonsdale Street,
Melbourne VIC 3000

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