Published in the Coffs Coast Advocate on 1 March 2015
Jim and Jane have been married for more than 50 years. They are both in their 80s and Jane has recently been admitted into a nursing home after being diagnosed with dementia. Jim still resides in their matrimonial home but now also requires the care that a nursing home can provide.
Unfortunately, Jim does not have the funds available to pay for the nursing home bond and needs to sell the matrimonial home. Jim also suffers from a cognitive impairment and is suffering substantial memory loss.
Jim’s son, James has been appointed as Jim’s power of attorney and he consults a solicitor about the sale of the property.
It comes to light that the property is in fact in the sole name of Jim and Jane’s daughter, Joy and therefore the sale cannot go through without her consent.
James is aware that the property was initially purchased as a vacant block by Joy more than 30 years ago. It is his understanding that his parents constructed their house on the vacant block 25 years ago, paid all of the rates and outgoings while they lived there and also paid Joy significant lump sum amounts.
James lodges a caveat on behalf of his parents and then applies to the court for an order that his parents are entitled to an interest in the property.
Joy opposes the claim, denying that there were any such lump sum payments and although her parents constructed the house, they lived there rent free and are therefore not entitled to anything more.
James’ barrister argues at the court hearing that Jim and Jane are each entitled to a one third interest in property by way of an “equitable estoppel”. He argues that an estoppel was created when Joy promised them an interest in the property and the right to reside there. The fact that Jim and Jane “relied” on the promise and suffered “detriment” was also raised as important elements of their action.
Unfortunately for Jim and Jane, they were unfit to give evidence and in the absence of any written agreement, the court ultimately dismisses the application ordering Jim to pay the whole of the legal costs personally.
