Colo is a small town located north-west of Sydney. Dame Leonie Kramer, the well known academic and former chair of the ABC, owned a 100 acre farm there.
Dame Leonie’s husband died in 1988. She made a Will in November 2011 and died in April 2016. Her Will left the farm to one of her daughters – Hilary.
Many years before, Dame Leonie and her husband had entered into a share farming agreement with a David Stone. This agreement was not in writing. It involved David living rent free on the farm, receiving a retainer and a share of the gross proceeds from the sale of produce and cattle.
David received $200,000 under the terms of Dame Leonie’s Will. He contested the terms of her Will, saying that both Dame Leonie and her husband had represented to him that he would receive the Colo property in return for David continuing throughout Dame Leonie’s lifetime to conduct share farming on the property. There was no written agreement that David relied upon and there were no witnesses to the alleged agreement. He argued that, relying on this agreement, he continued with the share farming arrangement and undertook additional tasks on the Colo property, in the expectation that Dame Leonie would give the property to him under her Will. He argued that he had relied on the agreement to his detriment, as he would otherwise have followed a different occupation in which he would have received a higher economic reward.
A range of defences to David’s claim were raised by the estate. Justice Robb of the Supreme Court of New South Wales found that David had established his case and that he should receive the farm instead of Hilary. However, this was conditional on David returning the sum of $200,000 he had already received from Dame Leonie’s estate. Crucially, the Court found David to be an exceptionally credible witness who was both truthful and reliable. Another important reason for this decision was that David was able to show that he had relied on the promise, making it irrevocable. It can be expected that, in these situations, courts will consider the relationship the parties have and whether the person receiving the promise relied on it to their detriment. It will also be asked whether it would be ‘unconscionable’ for the willmaker not to be bound by the promise.
So, what can be learnt from all of this? Clearly, some fact situations involving promises can amount to the promise overtaking what is in a Will. If you’re the willmaker, most obviously don’t make any promises that aren’t consistent with what is in your Will. If you’re the person receiving the promise, have the promise elevated to a term of the Will. If this isn’t possible, try to make the promise ‘stronger’ by a corroborating witness or having it reduced to writing. And if the promise involves acting to your detriment, make sure that you can demonstrate this has occurred.
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