Broken promises lead to super squabble

JOHN and Sally become romantically involved and a couple of years later, Sally moves into John’s home with her teenage son, Peter.

John and Sally are soon married and they purchase and move into a new home. Peter had finished school and he moved into rental accommodation with his girlfriend.

Unfortunately, ten years later Sally is diagnosed with cancer and she sadly passes-away.

Sally’s interest in the house passes to John by way of survivorship.

Sally’s only other substantial asset is her superannuation.

Sally’s superannuation fund writes to John and Peter, inviting them to make a claim on Sally’s superannuation.

John asks Peter to agree to the payment of the superannuation to John on the basis that if it is paid to Peter, he will have to pay “a lot of tax”.

John says that if he receives funds, he will leave Peter half of his estate and all his super when he passes-away.
Peter agrees to John’s proposal.

A couple of years later, John meets Jill on a dating website and they soon commence cohabitation.

After not seeing Peter for several years, John then makes a new will, leaving the whole of his estate to Jill.

When John passes away, Peter discovers that he is not included in the will and he makes a claim against John’s estate.

The Court finds that the “agreement” regarding John’s estate was unenforceable because the arrangement lacked sufficient certainty and did not possess an intention to be “legally” bound.

The Court also finds Peter’s “family provision” claim fails because there were no “factors warranting” the making of orders due to the estranged relationship between Peter and John at his date of death.

However, in relation to Peter’s “estoppel” claim, the Court finds that he is entitled to receive John’s superannuation on the basis that he relied on John’s promise, that if Peter did not make a claim on Sally’s super, he would ultimately receive John’s super.

Email Manny Wood, Principal Solicitor at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.

This column cannot be relied upon as legal advice.

By Manny WOOD, Solicitor