Mutual Wills challenged in Supreme Court

Published in the Coffs Coast News Of The Area on 23 May 2025.

Peter and Penny have a daughter, Diane and a son, Daniel.

Peter and Penny purchase a home in which to live with Daniel. The property is registered in Daniel’s name.

Later, Daniel moves-out and Peter and Penny continue to reside in the property.

Peter and Penny enter into a Deed with Daniel to the effect that the property shall be “deemed” to be theirs, provided that they are responsible for the mortgage and the outgoings and that they leave the property to Daniel in their wills. It is also agreed that Peter and Penny will not change their wills without Daniel’s consent, under a “mutual wills testamentary contract”.

Decades later, Peter passes-away and Diane moves into the property to care for Penny.

Penny changes her will, without Daniel’s consent and grants Diane the right to reside in the property for life, but if it is sold, Diane is to receive three-quarters of the proceeds of sale and Daniel, the remaining quarter.

When Penny passes-away years later and Daniel discovers that she had changed her will, a dispute arises with Diane. At this point, the property is valued at $2 million.

Daniel commences proceedings in the Supreme Court, to enforce the testamentary contract.

Diane says that even if the testamentary contract is upheld, she should receive sufficient funds to purchase another home, by way of a “family provision claim”. Her claim is based on her demonstrating financial need and is bolstered by the fact that she lived with Penny and provided her with care for many years.

The Court examines the circumstances surrounding the execution of the testamentary contract and rules that its terms are binding and as a result, Daniel is entitled to enforce the agreement against Penny’s estate.

However, the Court accepts that Diane’s family provision claim allows it to award her with additional provision in spite of the terms of the contract and orders her to receive $1.5 million to purchase a property on the basis that upon her death, the property passes to Daniel.

This fictional column is not legal advice.