Families do not usually make sure that promises are recorded in writing or documents evidencing transactions are kept. Failing to ask the “what if” questions (which lawyers are trained to ask) shows that this can be a mistake. In a case of Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 a husband passed away. His sister had been living in a house owned by him since her divorce and she regarded it as her home. She claimed she had paid $30,000 towards the purchase price from her family law settlement. A series of family members made claims against the husband’s estate. The Judge held that any promises made to the sister did not amount to anything more than a right to live in the house. The Judge also found that on the evidence the $30,000 was not paid towards the purchase price. This was critical because if the sister had paid a lump sum towards the purchase price it might have shown an intention that she acquire a percentage interest in the house. Ultimately, due to competing family interests, the Court was obliged to find that the house had to be sold. The Judge acknowledged it as a “train wreck” of a case. Recording the promises in writing may well have kept the train on the rails.
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