When Wills and Joint Ownership Clash

Published in Coffs Coast News of the Area on 28 August 2026.

Wally and Sally have been in a relationship 10 years. They purchase an apartment and Wally pays the whole of the purchase price.

The apartment is purchased in joint names.

Wally makes a will. He grants Sally the right to reside in the apartment for as long as she wishes and directs that upon its sale, the net proceeds are to be split between his two sons, to a previous relationship.

When Wally passes away, Sally lodges a Notice of Death, with the effect that the apartment becomes registered in her sole name. Given that the apartment was owned jointly, Sally is legally entitled to have the property registered in her name and the provisions of Wally's will, regarding Sally's right to reside in the property, are meaningless.

Sally tells Wally's children that she will pass the property to them in her will.

However, Sally subsequently decides to make a new will, leaving her whole estate to charity.

Wally's children seek legal advice and commence proceedings in the Supreme Court, advancing several claims, including resulting trust, estoppel and the enforcement of an oral agreement.

They claim that Sally promised to leave her estate to them and in reliance upon that promise, Wally purchased the apartment in joint names. They claim that Sally should be prevented from resiling from the promise and accordingly, they should receive an "equitable interest" in the apartment and are entitled to lodge a caveat, to protect their interest. In the alternative, the sons claim that they are entitled to receive a family provision order on the basis that they have missed out on their inheritance.

In her defence, Sally claims that she properly holds legal title in the apartment, that there was no binding promise and that she is entitled to deal with the property as she sees fit.

After a four day hearing, the Court finds that there was a binding agreement, granting Sally the right to reside in the apartment for life, after which, Wally's sons will inherit the apartment.

If you have a request for a Hypothetical, call Manny Wood on (02) 66 487 487 or email [email protected].

This fictional column is not legal advice.