- Merrett v Mackay  VSC 220
- Case 752151 (concerning BT Funds Management Limited)
- Re Dimitrijevic; Natoli v Beleslijin-Darabos  VSC 198
- Case 750261 (concerning NM Superannuation Pty Ltd)
- Case 762357 (concerning Nulis Nominees (Australia) Limited
- Re Caruso  VSC 242
- Case 761682 (United Super Pty Ltd)
- Cahn v Kosmin  NSWSC 751
Testamentary promise between mother and son
Darrel Merrett sued the executor of his mother’s estate regarding his entitlement to her Scotts Creek farm. Darrel argued that he was made promises about the farm since he was 18 years old, which he relied on by working on the farm for over two decades and contributing to mortgage repayments and payment of other expenses. He obtained poor remuneration from working on the farm which he could have bettered by gaining employment elsewhere.
Darrel’s mother, Caroline, passed away from complications from Alzheimer’s disease in 2015. In her last will, Caroline did not leave Darrel the Scotts Creek farm. Darrel tried to enforce his rights by relying on an oral agreement made between him and his mother in 2006 for Darrel to purchase the farm for $87,000. Based upon this agreement, Darrel obtained a loan from the ANZ bank for $87,000 and paid the money to his mother. The executor of his mother’s estate disputed the claim.
The Court concluded Darrel had not established any promissory representations regarding the ultimate ownership of any of the farms his parents’ owned that could reasonably be relied upon by him (Merrett v Mackay  VSC 220 (Daly AsJ) at ). However, it found that Darrel and his mother made an oral agreement for him to purchase the Scotts Creek farm for the sum of $87,000, which was subsequently varied by an agreement that it be left to Darrel by his mother in her will (at ). That agreement was unenforceable as it related to land and it was not in writing and signed by Caroline.
The Court found a common intention constructive trust because it was satisfied that Darrel and his mother intended, at the time of the 2006 transaction, that the beneficial ownership of the Scotts Creek farm would pass to Darrel after his mother’s death following his payment of $87,000 (at ). Denying Darrel the farm would be unconscionable because he had made significant contributions to it, maintained and improved the farm, paid the rates, the mortgage repayments, and other outgoings. He also paid $87,000 using borrowed funds on the faith of her promise to transfer the Scotts Creek farm to him or to leave it to him in her will (at ).
Fashioning an equitable remedy, the Court declared that the executor held the farm on a constructive trust for Darrel as to 65% of the property’s value (at ). Testamentary promises are a growing basis for estate litigation. Justice Kenneth Martin will speak on this subject at this year’s Blue Mountains Succession conference on 10 – 11 September 2022.