Determination that plaintiff’s contractual claim succeeds. Finding against cross-claim for recovery of monies. Parties to bring in short minutes of order.
Catchwords:
SUCCESSION — Testamentary promise — Deceased who was battling cancer with a prognosis of 3-6 months to live approaches sister for care — Plaintiff (sister) claims that the deceased promised her half of her estate if she looked after her — In the context of the COVID-19 pandemic, the plaintiff moved from Ocean Grove in Victoria, first isolating in Sydney for 2 weeks, and then travelled to Port Macquarie where she lived with and took care of the deceased for some 10 months, returning to Victoria for a period of 6 weeks — There was no written contract or document reflecting the alleged promise and there was limited contemporaneous documentary evidence generally — Deceased’s Will does not give effect to the purported contract but rather only gives by way of provision to the plaintiff items of personal effect, $20,000 and a motor vehicle, with the residue of the estate being divided between a cancer trust and a wildlife charity — Defendant, who is the executrix and a friend of the deceased, disputes the alleged promise was made or, if made, that it is enforceable — Defendant’s counsel contends that the plaintiff and witnesses in her case (her brother and her husband) have each reconstructed memories of material evidence — Plaintiff’s counsel postulates a case that the deceased harboured negative feelings for the plaintiff for leaving the deceased to look after their sick mother on her own, which led her to plot her revenge against the plaintiff in the form of not honouring the alleged promise
CONTRACTS — Testamentary contract — Whether the deceased promised the plaintiff half of her estate if she looked after her — Deceased updated her Will one week after the alleged promise conversation but before the plaintiff arrived in Port Macquarie and did not make the alleged promised provision — Defendant’s witnesses assert the deceased never told them she was giving the plaintiff half of her estate — Submission by the defendant that these factors are inconsistent with the alleged promise conversation not accepted — Found that the alleged promise conversation occurred as asserted by the plaintiff and foreshadowed by the evidence of the deceased’s and plaintiff’s brother that the deceased mentioned her plan to offer the plaintiff the alleged promise — Found that the promise conversation constitutes an agreement — Submission that the terms of the agreement are not certain rejected — Submission that there was no real consideration rejected — Submission that there was no intention to create legal relations rejected — Held that there was a valid testamentary contract between the deceased and the plaintiff which was breached by the deceased
ESTOPPEL — Equitable estoppel…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Mills v Dodds [2025] NSWSC 396
Case
[2025] NSWSC 396
Decision Date
CaseChat Overview and Summary
The case of Mills v Dodds involved a dispute over the estate of a deceased woman, who had made a testamentary promise to her sister, the plaintiff, that if she looked after her, she would receive half of her estate. The deceased, who had a prognosis of three to six months to live, approached her sister for care. The plaintiff moved from Ocean Grove in Victoria to Port Macquarie to care for her sister for about ten months. The deceased’s will, however, did not reflect this alleged promise, instead providing the plaintiff with personal effects, $20,000, a motor vehicle, and the residue of the estate to a cancer trust and a wildlife charity. The defendant, the executrix and a friend of the deceased, disputed the alleged promise, asserting that there was no enforceable agreement and that the plaintiff and her witnesses had reconstructed their memories.
The court had to decide several key issues: whether there was a valid testamentary contract between the deceased and the plaintiff, whether equitable estoppel applied, whether there was a restitutionary claim for money had and received, and whether there was a breach of the rule in Browne v Dunn. The court found that the alleged promise conversation did occur and constituted an agreement, rejecting arguments that the terms of the agreement were not certain, that there was no real consideration, and that there was no intention to create legal relations. The court held that there was a valid testamentary contract which was breached by the deceased. The court found that equitable estoppel was not made out because the plaintiff had assumed there was an oral contract and that the deceased knew or intended for her to act in reliance on the promise. The court also found that there was no obligation for the plaintiff to repay sums withdrawn during the last days of the deceased’s life and after her death because the payments were authorised. Finally, the court held that there was no general rule that unchallenged and uncontradicted evidence must be accepted and that there was no breach of the rule in Browne v Dunn.
The court's final orders were that the plaintiff was entitled to half of the deceased's estate. The defendant was ordered to pay the plaintiff the sum of $493,204.01, representing half of the deceased’s estate, subject to the deduction of any sums paid by the plaintiff to the estate prior to the commencement of the proceedings. The court also ordered that the defendant was to pay the plaintiff’s costs of the proceedings.