Proprietary Estoppel & Harbour Views

Birchgrove is a Sydney Harbourside suburb; David Moore and Douwine Andreasen owned and were living in 100 Louisa Road Birchgrove (“No 100”). They met the deceased, Barbara Murphy, who owned 66 & 68 Louisa Road before moving into 70 Louisa Road (“No 70”) in 1999. David and Douwine had bought No. 70 “the worst house in the best street” for re-development and sale for profit in order to better plan and provide financially for their retirement. After David and Douwine moved to No 70 in 2001 they developed a close relationship with Barbara.

In the context of the Sydney real estate market, there is a perceived advantage of Sydney Harbour water views. Barbara’s two properties each comprised two units; she occupied the upstairs unit at No 68 and rented out the remaining three units. Numbers 66-70 Louisa Road extend down to the Harbour. Relevantly, Barbara’s unit at No 68 had views of Sydney Harbour, that she was keen to retain. 

David and Douwine’s proposed development of No 70 included a similar extension to that being undertaken by the owners of No 72 Louisa Road (“No 72”). Barbara was unhappy with the works carried out to No 72; lodging objections with the Leichhardt Council and attempting to enter the site to check its compliance with the approved plans. 

Barbara raised her concerns with David and Douwine that their development at No 70 would block her views. Claiming that Barbara promised to leave them her whole estate in return for them agreeing not to undertake renovations that would restrict the view from her property and looking after her for the rest of her life. David and Douwine agreed and took care of Barbara and didn’t renovate the property; however, Barbara did not leave her estate to them under her Will.

Proprietary Estoppel

David and Douwine sought a declaration from the Court that the executor holds the whole of Barbara’s estate on trust for them in equal shares as tenants in common, and an order that the estate be transferred to them.

Proprietary estoppel is an equitable doctrine that applies where a person (A) induces another (B) to adopt an assumption or expectation that they have or will obtain an interest in A’s property, and based on this assumption B alters their position or acts to their detriment.

The Court was satisfied David and Douwine met the elements of proprietary estoppel as they had suffered a detriment due to their reliance on Barbara’s promise.

However, the claim for the entire deceased’s estate, valued at over $12 million, was out all proportion with the detriment they claim to have suffered in “looking after” Barbara and not blocking her views; making a declaration that the executor holds the properties known as No 66 and No 68 Louisa Road, Birchgrove on trust for David and Douwine in equal shares as tenants in common.

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Chadwick Boseman’s Californian Intestacy

Chadwick Boseman was diagnosed with colon cancer in 2016; enduring surgeries and chemotherapy as he became one of Hollywood’s biggest stars, he died in August.

“in his home, with his wife (Taylor Simone Ledward), and family by his side.”

The couple had been together since 2015 reportedly marrying shortly before Chadwick died.

Chad, as he was known to his family and friends, was born and raised in Anderson South Carolina. The youngest member of a family of five with two older brothers Derrick and Kevin and their parents Carolyn and Leroy; at 12 he read Derrick’s copy of The Autobiography of Malcolm X. The family were active members of Welfare Baptist Church.

Chad who graduated from high school in 1995 played on the basketball team wrote and staged his first play, Crossroads, following the shooting of a classmate.

Graduating with a degree in directing from Howard University, Chad moved to New York following a summer program at Oxford University. In New York Chad lived with his brother Kevin and studied acting to learn how to relate to actors. Working as the drama instructor at the Schomburg Centre for Research in Black Culture in Harlem and writing and directing several short plays including “Deep Azure.”

Chad came to prominence playing prominent African Americans including Jackie Robinson in 42, James Brown in Get on Up, and Thurgood Marshall in Marshall. However, he will be best remembered for Black Panther.

Black Panther

Black Panther, the first superhero movie to be nominated for the best picture Oscar had a predominantly Black cast. It has been reported that Marvel wanted T’ Challa, king of Wakanda – a fictional African high-tech utopia – to have an English or American accent, but Chad who had admired “Black Panther” comics since working at an African bookstore at Howard insisted on an African one.

Black Panther combined references to racial solidarity, slavery and colonialism with an afro-futurist aesthetic. Erik Killmonger, the antagonist and cousin to T’Challa asks to be buried

“in the ocean with my ancestors who jumped from ships because they knew death was better than bondage”.

A reference to the Igbo enslaved West Africans who in 1803 arrived in Savannah, Georgia, on a slave ship, rose in rebellion, took control of the ship, and committed mass suicide.

In 2018, Chad received an honorary doctorate and delivered the commencement speech at Howard University. He was proud to be awarded an honour that Jackie Robinson and Dr Martin Luther King Jr. received on the same day in 1957.

Chad hadn’t made a will; Taylor filed a petition for letters of administration at Los Angeles Superior Court also listing Chads parents in the filing.

California Intestacy Law

In California, when married people die intestate the deceased’s estate is distributed dependent upon whether the property was owned as separate or community property. Generally, the property acquired while married is community property; separate property is property acquired before the marriage. 

However, gifts and inheritances given to one spouse, even when acquired during the marriage, are considered separate property

Under California’s intestate succession laws, if the deceased did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister, the spouse will inherit 100% of the deceased’s separate property. 

If the deceased had surviving children, the surviving spouse will share the deceased’s separate property with the children. If the deceased has no surviving spouse, children, parents, siblings, grandparents, aunts, uncles, nieces, nephews, or cousins, the property will escheat – the State of California takes title and delivery of that property for its own use.

Caveats & the Family Provision Claim

John Dodd died in early March 2020. John’s sister Marilyn (the plaintiff) is the executor and sole beneficiary of John’s estate. 

John was the registered proprietor of land at 25 Rigney Street, Shoal Bay (the property). In late March John’s son, Peter (the defendant) moved onto the property. A scheduled auction in July 2020 had to be postponed and rescheduled due to Peter’s occupation of the land. 

Peter filed a document described as a defence in late July 2020 submitting that he has filed a summons claiming that provision be made for him from the estate of his father under s 59 of the Succession Act 2006 (NSW) (“the Act”).

A caveat can only be lodged to protect a proprietary interest in Torrens title land. According to s 74F(1) of the Real Property Act 1900 (NSW), this interest must be

“a legal or equitable estate or interest in land.” 

A caveat cannot be lodged to protect a contractual or personal right or a statutorily based right that does not confer any interest in land, similarly, the filing of a family provision claim does not amount to a defence to a claim for possession. 

As the action under the Act is the sole basis for Peter’s claim to be in the premises, the court struck out the defence. Therefore Marilyn is entitled to commence proceedings for possession of the property, notwithstanding that a later order may be made under the Act. 

Probate, Costs, Administrator Pendente Lite

Melville Gooley, died on 23 December 2017. Two of his daughters Aleta and Melinda were named as the executors of Melville’s Will dated 18 July 2014 (the 2014 Will). Following Melville’s death, Aleta and Melinda opened a bank account as Executors of the Estate of Melville Gooley (“the account”).

Melville’s son Brett lodged a caveat in January 2018 preventing a grant of probate being made without prior notice. On 9 July 2018, Aleta and Melinda commenced probate proceedings in relation to the 2014 Will.

Brett is concerned that Melville lacked testamentary capacity to make the 2014 Will as he had suffered from dementia for many years before he died, therefore Brett submits that Melville’s last valid will was executed in February 2010 (the 2010 Will) or, alternatively, June 2012 (the 2012 Will).

Brett was named the sole executor under both the 2010 Will and the 2012 Will and sought probate of the 2010 Will or, alternatively, the 2012 Will.

Aleta and Melinda believe the 2014 Will is valid although if the Court finds that Melville lacked testamentary capacity at the time, they contend that he had testamentary capacity when making Wills in March 2014, May 2013, March 2013, November 2012 or September 2012; therefore if the 2014 Will is held to be invalid probate should be granted in respect of one of those Wills.

Aleta and Melinda transferred over $1.4 million from the estate into the account and their legal costs were paid from this account. Brett sought the appointment of an administrator pendente lite the object of which

‘is to ensure that the deceased estate is managed and preserved for the benefit of those persons who may ultimately be found… to be entitled to it’(at [126]).

In Gooley v Gooley [2020] NSWSC 798 the court concluded that the assets of the estate were at a level of jeopardy sufficient for the appointment of an administrator pendente lite; however should Aleta and Melinda provided an affidavit outlining past transactions these concerns would be alleviated.

If the court grants probate on a Will that names Aleta and Melinda executors s 44 of the Probate and Administration Act 1898 provides retrospective authorisation of their spending of Estate funds before the grant of probate; importantly this will only apply to expenditure that could properly have been incurred by the executors of the Estate.

Ultimately whether or not Aleta and Melinda’s legal costs in this proceeding will be paid out of the Estate depends solely on the Court’s discretion under to s 98 of the Civil Procedure Act 2005 (NSW).

When it comes to making a will formalities are important

In the Estate of Jansen [2020] ACTSC 130 Ronald Jansen’s wife Cheryl and sister Sonja sought a declaration that an undated document signed by Ronald constitutes his Will although it does not meet the formal requirements of the Wills Act.

Additionally, that probate in relation to the Will be granted to Cheryl and Sonja.

In early September 2018, Ronald was diagnosed with cancer. Soon after the diagnosis, he told Sonja he wished to make his will. Ronald dictated his wishes to Sonja telling her that he would call his solicitor after he left the hospital. The solicitor prepared and sent the draft will to Sonja by post.

On 23 October 2018 Sonja visited Ronald at his home as Cheryl had arranged a birthday party for her. Ronald asked her if she had the will because he needed to sign it. Ronald read it, said that it looked okay and then signed the will in her presence. No one else was present.

Sonja left the room with the signed document and had a guest at the party sign it; before changing their mind as they did not want to take sides between Sonja and Cheryl. However, another guest at the party signed each page.

On 28 October 2018 when Sonja visited Ronald in Hospital, a fellow visitor signed the will but not in the presence of Ronald.

Ronald died on 5 November 2018.

The Decision

The document is in the conventional form of a will but neither witness was present when it was actually signed. It is for that reason that an order under s 11A was sought.

Where a document expressing testamentary intention has been formally executed by the testator and attested to by the witnesses as a will, all in the presence of each there is a presumption that it is the last will and testament of the testator.

Conversely where a document has not been formally executed and attested the presumption that it is the last will and testament of the testator does not arise.

In this case, Cheryl and Sonja must provide evidence of search to ensure that there is not a will which embodies the testator’s intentions as recorded in the informal or unexecuted document.

The court held the statutory requirements for the making of an order under s11A of the Wills Act are satisfied; the document clearly purports to state Ronalds testamentary intentions and was clearly intended that it constitute his will.

Further, a search has been made and there is no later will or document purporting to contain his testamentary intentions.

Charitable Gift Void for Uncertainty

Charles Campbell Coghlan died in March 2017 leaving one-third of the residue of his estate to

‘Diabetes Australia of 26 Arundal Street Glebe New South Wales’.

no entity fits that name and address.

On 10 July 2017, probate of Charles Will dated 5 June 2013 was granted to the plaintiff however, three entities who may have been the intended beneficiary were

• Diabetes Australia – the entity named in the will;

• Diabetes NSW – which operates from 26 Arundel Street, Glebe, NSW; or

• Diabetes Australia – Victoria which the deceased had substantial contact throughout his life.

in Re Coghlan; Merriman v Attorney-General for the State of Victoria [2020] VSC 392 the plaintiff sought the Courts direction as to which entity; more than one of the entities; or some other entity had been described as ‘Diabetes Australia of 26 Arundal Street Glebe New South Wales’ in the Will.

At common law, the armchair principle provides that evidence of the circumstances surrounding the deceased at the time they executed the will including evidence of the deceased’s general habits and knowledge, may be admissible but not to evidence of the deceased’s actual testamentary intention.

In situations where the description contained in a Will could refer to more than one entity, evidence that the deceased had involvement with, referred to, or made contributions to one institution during their lifetime, may be admissible in support of a particular construction.

As a general rule courts favour the entity with the correct name. In this case the Court considered that this approach provided

limited assistance in circumstances where the will itself refers to one entity by name and a different entity by address, and otherwise provides no indication as to which of those entities the deceased intended to benefit’

The Court held that unless extrinsic evidence is sufficient to show that a deceased person did not actually mean what is said in a will, the Court is not entitled to re-write it.

As the Court was unable to ascertain the clear meaning of the gift in Charles Will it was rendered void for uncertainty. Ordering that if it could be established the gift was for charitable purposes but the mechanism for administering it was deficient the Court could consider and, approve an appropriate scheme.

Calderbank Offers in Recent Courts of Appeal decisions

Recently I discussed the genesis of Calderbank offers, an offer of settlement expressed to be

“without prejudice save as to costs”

A Calderbank offer can be oral or in writing; an oral offer may be given less weight depending on the circumstances of the case. Importantly the court exercises its discretion regarding costs.

A Calderbank order may be made on an indemnity basis in favour of

a successful party contrary to the rule that costs are awarded on an ordinary basis ; or

a losing party contrary to the general rule that costs follow the event .

Western Australia

In Shephard v Galea and Byrne as Executors and Trustees of the Estate of the late Joseph Galea the appellant (Georgina) brought a derivative action against her siblings and executors (Carmen and Tony) of their father Joseph Galea’s estate. 

Joseph transferred his property to Carmen and Tony before his death, leaving little in the estate. Georgina sought relief on behalf of the estate alleging that the transfer was the result of undue influence and unconscionable conduct by Carmen and Tony. 

The court held Georgina’ failure to accept the 8 June 2018 Calderbank offer from Carmen and Tony to be unreasonable conduct and granted the orders sought for indemnity costs after 8 June 2018 

The appeal against the primary decision and the cost’s decision were dismissed.

New South Wales

In Wallis v Rudek the parties disagreed on the precise terms of an arrangement where an adult daughter paid $827,498.27 to discharge the balance of her parents’ mortgage and her parents transferred ownership of the home to her. 

The daughter and her immediate family moved into the home and the parents continued to reside on the ground floor; the daughter prepared a licence agreement for the parents to sign but they refused.

Difficulties emerged between the parents, their daughter and her family, leading to the daughter giving notice to her parents to vacate the ground floor of the house.

The parents resisted the notice claiming their daughter promised they could live, rent-free in the ground floor of the house until they died, and their daughter would live in the upstairs part of the house. In the alternative, the parents sought the difference between the amount paid by their daughter to discharge their mortgage and an asserted value of the home of $1,050,000. 

The primary judge found that there wasn’t a commitment that the parents had an unqualified right to reside in the property for the rest of their lives ; ordering the daughter pay equitable compensation to her parents equal to the difference between what she had paid to discharge their mortgage and the uncontested value of the house accepted at trial. 

On 20 February 2018, the daughter had offered “…to minimise any further animosity or hostility between the family” $200,000 to the parents if they were to vacate the property. The parents had rejected the offer.

On 17 April 2018 the daughter relying on Calderbank v Calderbank principles made a further offer “to resolve this matter now” stating if the offer was rejected and she was successful in any hearing, the offer would be used in support of an application for an order for costs on an indemnity basis.

The appeal was dismissed with costs.

Calderbank – ”without prejudice save unto costs”

A Calderbank offer is made by one party putting the other side on notice that if the dispute goes before a court, and the outcome is less favourable to the other the court,  in exercising its discretion as to costs, can order a party who rejected the settlement offer to pay the successful party’s costs up to the time the offer was made, on an ordinary basis; and from the date of the offer to the end of the litigation on an indemnity basis. 

Jacqueline and John Calderbank were married to each other for 17 years. In January 1973 Jacqueline left home and commenced divorce proceedings seeking a declaration that the family home, was her property. John sought a financial provision or alternatively a property adjustment order. 

When her mother died in 1964 Jacqueline inherited about £30,000 and following her father’s death in 1969 another £50,000. As a consequence, Jacqueline purchased the matrimonial home around 1970; although the home was put into John’s name for financial reasons. In June 1970 Jacqueline had purchased a house that was made available for the occupation of John’s mother.

Therefore prior to the marriage breakdown, Jacqueline and John were living in a home financed by Jacqueline; similarly, she was paying their children’s school fees.

The court awarded John £10,000 plus court costs. On appeal, the Court upheld the £10,000 damages but reversed the burden of paying legal costs from Jacqueline onto John; as prior to the matter going to trial, Jacqueline had offered John the house that was rented to his mother as settlement.

The Court held that the legal proceedings had been unnecessarily prolonged by John’s refusal to accept Jacqueline’s settlement offer.

Anatomists, Bodysnatchers and the Iron coffin

In the eighteenth and nineteenth centuries in England and Wales, body-snatchers or resurrectionists were commonly employed by anatomists. A shortage of available bodies for medical students and doctors to study and dissect led to corpses becoming a commodity; although the general public was concerned by disinterment, bodies were not legally anyone’s property.

Measures taken to stop resurrectionists included, night patrols of graveyards sites, physical barriers such as “mortsafes” ranging from iron cages to heavy stone table tombstones or concrete boxes and heavy stone slabs and in some instances secure coffins impeding the extraction of the corpse.

In Gilbert v Buzzard (1820) 3 Phill 335; 161 ER 1342, often described as the leading case on the common law right of burial in the churchyard; Gilbert wished to bury his deceased wife in an iron coffin, as a protection against grave robbers. Buzzard as churchwarden, refused internment of the coffin, as the parish disapproved of iron coffins.

As the secular courts held that the right of a burial was a common law right alone: but … the mode of burial is a ’matter of of ecclesiastical cognisance alone’ Gilbert took his complaint to the local ecclesiastical court noting

‘ that a parishioner has a right to be buried in his own parish churchyard: but it is not quite so easy to find the rule … that gives him the right of burying a large chest or trunk along with himself’ (p.1348).

A coffin burial imposed a burden on the parish to purchase and maintain additional burial grounds; coffins took up more space in the churchyard, and retarded the ‘dissolution’ of the human remains in the soil, preventing the use of the ground for future burials.

The Chancellor ordering the parish to calculate a scale of charges for digging the grave and burial in both wood and iron coffins (including separate payments to churchwardens) enabled Gilbert to bury his wife as he wished, and the parish was compensated for the increased financial burden that this caused.

The scale of fees that was eventually approved included separate payments to Buzzard and the churchwardens. The Chancellor held that a relative of a deceased

 ‘has no right … to quarrel with the public uses to which [the fee] has been applied by the parish’ (p.1351).

Interestingly the ecclesiastical courts doubted (Dixon (1892) Probate Division 386) that the common law right of burial extended to the burial of cremated remains, although this avoids the practical difficulties identified with coffin burial in Gilbert v Buzzard. s.3(1)Miscellaneous Provisions Measure 1992, confirms a person who has a right of burial in a churchyard has a right to the burial of their cremated remains.

Family Provision and the Lax Executor

Shirley Hartley died in June 2016 survived by her sons Craig, Shane, Peter and Damian.

Shirley executed her last will (“The Will”)in March 2015 appointing Shane as executor and leaving a property to Shane, Peter and Damian; a vehicle to Shane and the residue of the estate to Shane, Peter and Damian in equal shares.

Statutory Declaration


The Will was accompanied by a statutory declaration explaining that due to Shirley’s past financial generosity towards Craig, his drug addiction and alcoholism, imprisonment, and theft from her, the stress he caused to her during her cancer treatment and the restraining order she had taken out against him he was excluded as a beneficiary of the Will.

The Executors year

In the administration of an estate, there is a general principle that a period of 1 year from the date of death is a reasonable time within which an executor should administer the estate.

Craig applied for a revocation of the grant of probate seeking a grant of letters of administration to a reputable solicitor to be appointed as administrator and trustee in Shane’s place; submitting that Shane had failed in his performance as executor of the estate.

Standing


Shane submitted that Craig has no standing to bring the present application. However, the Court stated s 6 Succession Act 1981(Qld) provides broad jurisdiction in estate matters “as may be convenient”. Accepting Shane’s performance of his duties was “so lax” that if any of the named beneficiaries were the applicant, the Court would grant the application. Of particular concern was Shane’s failure to comply with his obligations as a litigant acting for the estate in defence of Craig’s family provision application filed in the District Court on March 2017.


Shane has not complied with a District Court order on 20 March 2019, to file his affidavit in the claim by 15 April 2019. Although the Court observed, Craig has been far from the model litigant, (in part because of his incarceration) but he has finally brought the application to remove Shane as executor.

Caselaw suggests that what constitutes standing varies depending upon the nature of the case and the nature of the asserted interest or right of the party whose standing is in question. The Court observed that Craig’s prospective interests via a family provision application with its legislative protection of the executor is a powerful indicator that this interest is sufficient to give him standing.

The Court adjourned the matter to allow sufficient time for it to become apparent whether Shane is conducting himself consistently with his duties as executor, including in his role as a party to the District Court litigation.