When a person relies on a Will makers promise

Mario Novick moved from Italy to Australia in 1947. In Australia he worked in various semi-skilled jobs until he retired in 1994 aged 67. At approximately this time, he encouraged his second cousin Lorena aged 25 to emigrate from Croatia to Australia.

In 1994, Lorena began work as a waitress and cashier in 1995 she began visiting Mario at his apartment. She would take cooked meals, fruit and groceries and other domestic items to him. Her husband Edi would also do maintenance work on Mario’s apartment.

From 1994 to 2016, Mario would stay at Lorena’s home in the Northern Beaches of Sydney for Christmas and Easter for a number of days; He would often visit Lorena’s home on weekends on a weekly or fortnightly basis to spend time with her family.

Mario enjoyed frequent contact with Lorena’s family, including babysitting or playing games with her two sons when they were young.

Lorena would take Mario to his doctor’s appointments in Potts Point, or specialists in Chatswood and Darlinghurst.

In 1998, Mario asked Lorena if she could provide further assistance by helping wash his clothes, cleaning, doing the shopping and errands. Mario told her

I want to repay you and your family for all the work you have done for me and the work you are going to do for me in the future. Instead of me paying you, I am just going to leave you everything I have in my Will.

From 1998 to 2016, every three to four months Mario would say:

Lorena you have been wonderful to me and I know you will be looking after me for some time. I want to repay you for all of your effort by leaving you everything I have in my Will.

In response to these representations, Lorena spent time and money giving and providing help and services to Mario. Lorena assisted by cleaning, cooking, shopping and washing clothes; Collecting and driving him to medical appointments from 2010 until his death.

Angela first met Mario in August 2013. It appears that Mario had become infatuated with Angela and told Edi that she was going to be his live-in carer, but that Lorena had done so much for him over the years and he was leaving his apartment to her.

In June 2014 and August 2014, Mario made two wills prepared by different solicitors instructed by Angela leaving his entire estate to her. Mario never told Lorena, her family or his friends about these Wills.

In 2015, Mario told Lorena:

Lorena I have made sure you will be repaid for all your help, my Will says that you get all of my Estate. Don’t worry you will get everything.

In July 2015, Mario entered into a reverse mortgage with an opening balance available for drawdown of $213,950. Mario wrote a note to the Angela, stating:

Dear Angela,

Please accept this gift as a token of my appreciation for all your devotion & care of me you are an angel.

Love Mario

In August 2015, Mario transferred two amounts of $50,000 to Angela’s bank account with ANZ Bank corresponding to two drawdowns of $50,000 from Mario’s reverse mortgage loan.

Angela had access to Mario’s personal bankcard and PIN and made withdrawals from his reverse mortgage loan.

In October 2015, Angela moved into Mario’s apartment in Potts Point. After Angela moved in Mario’s friends found it difficult to have a private conversation, as she would always make sure that she was sitting nearby when they spoke with Mario.

In November 2015, Mario allegedly composed a note outlining his dissatisfaction with the care offered to him by Lorena and Edi.

Angela moved into Mario’s unit but moved out following an argument in 2016.

In August 2016 until his death, Mario’s health deteriorated requiring frequent hospitalisation. During this time Angela made multiple withdrawals from Mario’s reverse mortgage account.

In May 2017, Mario made a further will naming Angela as executor and trustee leaving his entire estate to her.

Prior to Mario’s death Lorena was upset that Angela was not telling her anything about his treatment or his needs. Edi discovered Mario had died when Mario’s neighbour rang to tell the family that Mario had died.

Promissory Estoppel

Equitablepromissory estoppel, is, typically, focussed on the conscience of the defendant: it operates when the defendant has induced the plaintiff of an assumption that the defendant will not assert its strict legal rights, so to prevent unconscientious insistence by the defendant on them.

In this instance is necessary for Lorena to establish

(1) that she has adopted an assumption as to the terms of a legal relationship with Mario;

(2) that Mario has induced or acquiesced in Lorena adoption of that assumption;

(3) that Lorena has acted in reliance on its assumption;

(4) that Mario knew or intended that Lorena so act; and

(5) that it will occasion detriment to Lorena if the assumption is not fulfilled.

This case is about whether it would be unconscionable to allow Mario to avoid his lawful obligations.

The court held that as a result of Mario becoming enamoured of Angela, he was prepared to renege on his promises to the Lorena.

The court took the view that in the circumstances Mario should be held to those promises. The length of time over which the Lorena carried out the various activities as a result of his promises it would be unconscionable to permit him to resile from the promises made and the expectations which he created in Lorena’s mind and which caused her to expend the time and effort.

The court believed Money was insufficient to recognise that which Lorena has done in reliance upon Mario’s promises therefore in order to fulfil Mario’s promise and its performance a trust ought to be declared on what is left of the proceeds of his estate.

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