It is common for family members who provide financial support for each other not to put those arrangements in writing. It is also common for lawyers to see those family members after the event when relationships have soured and for lawyers to find themselves saying to clients “if only you had put it in writing”. There is no doubt that a written document is the best protection. However, a Judge in a recent case (Nadilo v Souris [2019] NSWSC 108) was prepared to believe family members when they said they had made a financial contribution to the purchase of their parent’s home on the promise that they would be repaid either on the sale of the home or when their parents “passed on” (ie not a gift or a loan). After both parents had died it was discovered that the surviving parent had left all her estate to a daughter who had not made any financial contributions. Judge Leeming was prepared to believe that promises were made and determined that the family members should be treated as having an interest in the home on “resulting trust” in accordance with the contributions they had made.
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