An extraordinary promise and estoppel – Moore v Aubusson [2020]


By Priscilla Sidey

Case Summary – Moore v Aubusson [2020] NSWSC 1466

The case of Moore v Aubusson involves a dispute over the distribution of the $11M estate of the late Ms. Barbara Murphy. The plaintiffs were Ms. Murphy’s neighbours and claimed that Ms. Murphy had promised to leave her entire estate to them in exchange for their commitment to providing lifetime care to her. They sought to enforce this agreement through a trust recognised by Handley AJA in Delaforce v Simpson-Cook (2010) after learning a codicil to Ms. Murphy’s will only left $25,000 to one of the plaintiffs “in consideration of the assistance he has given me.”

The plaintiffs argued that the promise was not revocable in the presence of a testamentary contract, or estoppel, by encouragement, based on testamentary promises, and that the defendant executor was estopped from acting against the promises made to them by Ms. Murphy.

The defendant argued that the plaintiffs’ claims were unfounded and uncertain, and the alleged oral promises made by Ms. Murphy were implausible. The defendant further noted that there were no independent witnesses to verify these promises and that neither party sought to confirm them in writing.

Throughout the proceeding, the plaintiffs contended that little weight should be given to the absence of contemporaneous records, and a lack of formality was largely explained by the relationship between them. They submitted evidence they entered a contractual relationship with Ms. Murphy in late 2004, based on her alleged promise to pledge her estate to them when she passed away, including her two valuable Sydney Harbour waterfront homes. They argued that Ms. Murphy’s promise to them was supported by multiple conversations, corroborated by other evidence, and that they had changed many personal and investment plans in order to provide her with care and assistance, relying on these promises.

The plaintiffs asserted their agreement to look after Ms. Murphy formed the basis of a legal obligation and gave evidence they withdrew previous plans to redevelop their own house (which would have blocked some of Ms. Murphy’s water views) and sacrificed investment opportunity. The plaintiffs submitted their estoppel claim was based on the same matters as the contract claim.

Ms. Murphy’s sister’s evidence was considered to confirm the making of a testamentary promise, as the plaintiffs alleged, corroborating their evidence, notably that Ms. Murphy had told her more than once that she was leaving her estate or “the house or the money from the house” to the plaintiffs.

Her Honour, Ward CJ, noted that if estoppel were established, the relevant property is subject to a constructive trust from the time when there is reasonable reliance upon a promise, rendering it unconscionable for the owner of land to resile from the promise. Submissions were made that the plaintiffs undertook life-changing decisions, which had irreversible financial and personal consequences, and the measure of relief should be the substantial fulfilment of the assumptions induced by Ms Murphy.

In conclusion, her Honour found that although the understanding between the plaintiffs and Ms Murphy did not amount to a contract, it was the personal lifestyle changes they made to accommodate providing care to Ms Murphy, rather than the investment opportunity sacrifice, that was determinative, at 416: “I find that detrimental reliance sufficient to render it unconscionable for the deceased to resile from the testamentary promises has been established, and the elements of proprietary estoppel made out.”

Her Honour ultimately decided the testamentary promises were limited to the two waterfront properties only. These, nevertheless, formed the bulk of the estate.

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