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NSW Father's Will was Changed - Am I Entitled to Equitable Interest?

Discussion in 'Wills and Estate Planning Law Forum' started by peter berenger, 22 July 2015.

  1. peter berenger

    22 July 2015
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    I was promised my father's house (inheritance) in his will if I gave up work to come and look after him prior to his death. Provisions were made in an old will to that effect. However, after his death, I found out that the will had been changed and the property had been devised to someone else.

    Do I have any equitable interest in the property? Someone mentioned to me the doctrine of part performance???

    If I do have an equitable interest then does the other party take the legal interest subject to my equitable interest or hold my interest on constructive / resulting trust ???

  2. Ivy

    Ivy Well-Known Member

    10 February 2015
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    Hi Peter,

    Has the property's title been passed to the person in the will? If it has, there is not a great deal you can do unless you have evidence of fraud on the part of the receiver.
    If not, you need to lodge a caveat ASAP. A caveat will stop dealings on the property until you have had a chance to prove your claim.

    The acts of part performance that was mentioned to you relate to the doctrine of a specifically enforceable contract. This is what I wrote about SECs in a previous post and it applies directly to your question: "A specifically enforceable contract can be in writing or it can be proved through sufficient acts of part performance. In Australia, there is a strict definition of what constitutes part performance to prove the existence of a contract. The test comes from a case called Maddison v Alderson and to meet the test, the acts of part performance can only be referable to the existence of a contract of the kind alleged. You might run into difficulties under the strict test. This is because the existence of a contract for property transfer between you and your father is one explanation of why you paid the mortgage however another reason could be love and affection between family members."

    However the fact that you have an old will showing that the property would be passed to you is certainly greater evidence of the contract between you and your father.

    Do you have any idea why the will might have been changed?

    I suggest that you engage a solicitor as soon as you can. Firstly, you will need to lodge a caveat (assuming title hasn't passed) and then you will need to take steps to prove your interest in the property.

    Finally, two previous threads on this topic (one of which I quoted myself from):
    QLD - Property Transfer - I've Been Paying Mortgage - Who Owns the House? | Legal Aid Forums
    QLD - Paying Mortgage - Will House Go to Me When My Mum Passes? | Legal Aid Forums
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