Court admits claim in real estate planning dispute over oral agreement

NSW Supreme Court smsf


judgment lucas vs saruman [2022] NSWSC 1301 concerned an agreement purportedly made before the death of stepfather George Salman regarding the division of his property and that of his late wife, Jill Salman.

It also involved an application by George’s son-in-law for a family provision order. Succession Act 2006 (New South Wales).

The plaintiffs in this case, Paul and Carl Lucas, were George’s sons-in-law when he married Jill.

The original defendant in the case was John Salman, George’s brother and named executor of George’s estate.

Other defendants were Jodi Salman, George’s wife at the time of his death, and Joan and Paul, George’s biological children from his first marriage.

Jill passed away in February 2016. Her assets at the time of her death are:

  • One-half share as co-tenant in the Irawong estate given to George by the survivors.
  • $202,000 retirement pension.
  • An import company operated by Jill has an estimated asset of $50,000.
  • Jewelry of unknown value.

On April 5, 2016, George executed a will (2016 Will) dividing the remainder of his estate equally between the plaintiffs and the third and fourth defendants.

In May 2016, George met the second defendant, Jodie, and began dating that same month.

On October 15, 2017, George made a new will (2017 will) Divided his property:

(1) Red Corvette to John.

(2) $100,000 to Jody.

(3) The remainder is split evenly between Joan and Paul Salman.

On February 19, 2019, George made a final will (final will) with the same terms as his 2017 will, except that he increased his estate to Jodie from $100,000 to $350,000.

Around June 2016, plaintiffs claimed that if George left them a quarter of his estate, agreed not to claim from his mother’s estate, and allowed him to acquire a super, his mother’s superannuation. He claimed that he had offered to repay.

The plaintiffs alleged that they agreed to their intended agreement after speaking with each other.

In the Amended Statement of Claim, the Plaintiff enters into a valid and enforceable agreement with the Plaintiff that the late George Salman will leave to each of the Plaintiff one-fourth of his estate by will, He asked for a declaration that he would take the necessary measures. that each of the plaintiffs shall, upon death, receive one-half of his retirement entitlements and one-fourth of his earnings on any life insurance policies he may have effected on his life;

Alternatively, they sought a declaration that the deceased had been escorted out of denying him leaving. [sic] It is necessary for each of the plaintiffs to receive one-half of his retirement entitlements and one-fourth of the proceeds of any life insurance policy he may have entered into on his life.

In his ruling, Judge Francois Kunk noted that there was a lack of evidence to support the fact that the 2016 conversation between George and the plaintiffs actually took place.

“The only contemporaneous evidence of such an agreement was a few conversations between family members. Neither party recorded written evidence confirming its existence,” the Kunc trial said. the official said.

Therefore, the court could not be satisfied that the conversation took place on the terms alleged.

“There were discrepancies between plaintiffs and witness testimony regarding the content of the agreement.

“Even if the conversation took place as claimed, it did not reach the level of the contract because there was no intent to create a legally binding relationship between George and the plaintiff,” he said.

He suspected that George’s death benefit formed part of an agreement or discussion between George and the plaintiff, or that the plaintiff would receive a respective one-fourth share of George’s estate. I didn’t admit that.

“With verbal contracts, absolute accuracy is not required, but courts are reluctant to make the deceased’s promises more certain without corroboration,” he explained.

“The court is satisfied that there has been a representation regarding the old-age pension, but the court cannot, in order to find a contract, separate the old-age pension, whatever the agreement as a whole.”

However, Judge Kunc acknowledged George’s defense to plaintiff regarding Jill’s retirement pension.

“We are pleased that plaintiffs have estopped. As is clear from the court’s findings of fact, George has offered plaintiffs retirement benefits in exchange for not claiming Jill’s retirement benefits and property. It has made a statement to the effect that it gives, and the court has accepted it, and we acknowledge that the plaintiff relied on that statement,” he said.

“The court is also satisfied that statements have been made regarding the plaintiff’s inheritance of a portion of George’s property, but those statements establish entitlement to a quarter share of George’s property. Not. The balance of powers establishes a higher threshold for certainty in the case of promise estoppel than in proprietary estoppel.”

Judge Kunc accepted the contention that the related prejudice suffered by plaintiffs was a loss of opportunity to pursue claims for Jill’s retirement pension and/or property.

“Plaintiff successfully asserted estoppel and is entitled to receive an amount equal to the balance of George’s superannuation of $211,892.84 with interest from the date of George’s retirement,” he said.

“Defendants will be given the opportunity to decide how the money will be paid.”


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