Whose House Is It Anyway?

Published in Coffs Coast News of the Area on 8 May 2026.

Frank migrated to Australia from Scotland, 30 years ago.

One of Frank’s sons, Sam, still a Scottish national, visits Frank 10 years ago and is concerned that Frank’s rental accommodation has a steep flight of stairs to access the property and feels that it is unsuitable in other respects.

Sam offers to buy a more appropriate house for Frank. He says that the house will need to be in Frank’s name “because of foreign investment rules”. He says that Frank will need to leave the house to him in his Will and Frank agrees.

Frank makes a Will, leaving the whole of his estate to Sam and also executes an Enduring Power of Attorney, appointing Sam, to manage his finances, should he lose capacity.

Unfortunately, Sam passes-away unexpectedly.

Frank then decides to change his Will, leaving the whole of his estate to his only other surviving child.

When Frank dies a few years later, Sam’s wife commences proceedings against Frank’s estate, when she discovers that the Will had been changed.

She alleges that Frank’s home is held on “constructive trust” for Sam’s estate, of which she is the sole beneficiary.

To be successful, Sam’s wife must prove that there was an intention to create an agreement, supported by financial contribution, whereby she suffers detriment if the agreement is not enforced.

Frank’s executor says that the purchase of the house was nothing more than a gift.

The Court is concerned by the lack of documentary evidence and in relation to the different versions of the events articulated before the Court, states that “human memory of what was said in a conversation is fallible for a variety of reasons, including the passage of time and perceptions of self-interest”.

At the conclusion of an expensive hearing, the Court finds that the available evidence is sufficient to establish that upon the sale of the property, Sam’s wife is entitled to the whole of the net proceeds of sale.

Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at [email protected] or call him on (02) 66 487 487. This fictional column is not legal advice.