Investing with family – the importance of writing it down25 September 2019 Topics: Estate planning, Estate administration and disputes, Property and planning law
There have been two recent cases in the Supreme Court of New South Wales that reinforce the importance of documenting agreements between family members to avoid disputes later on.
Nguyen v Nguyen
This case involved an agreement between a brother and sister that was never written down.
The siblings agreed to buy a residential property in the brother’s sole name, but they were both borrowers under the mortgage.
The sister negotiated the sale price with the seller and paid the deposit to the estate agent, stamp duty and other fees in the transaction.
The sister lived on the property with her family for several years and made repairs and improvements to the property using her own funds. Years later, she vacated the property and a tenant moved in.
After the tenant vacated the property, the brother changed the locks.
Inevitably, the dispute proceeded to court. The brother argued he was the sole registered owner and that his sister only ever occupied the property as his tenant. The sister argued she and her brother were the joint owners of the property.
As there was no written agreement between the siblings, the Court was required to infer the agreement they reached years before.
The outcome was that, while the property was registered solely in the brother’s name, he held 40% of that property on constructive trust for his sister.
Interestingly, the outcome was that neither of them were correct in their understanding of their agreement and the Court decided that a mix of their two positions was the correct one.
Henley v Bone
This case involved real estate held in the name of Gregory Henley at his death.
Gregory’s mother had sold her business in Victoria and was thinking about relocating to northern New South Wales to live near Gregory. She had made a trip to the area to look at properties but was unsuccessful in her search.
Gregory later found a property that his mother liked, and his mother transferred funds to him to pay the deposit. Gregory signed the contract in his own name and completed the transaction using more money from his mother.
Gregory’s mother had no contact with the vendor, the vendor’s agent or the conveyancer and Gregory completed all communications and signed all documents himself.
After settlement, Gregory occupied the property for a short period of time before vacating and his mother moving in.
Gregory later died intestate and his mother claimed the property was held by Gregory on trust for her.
The Court found that no trust for the mother existed. Gregory was the registered and beneficial owner of the property but had intended to allow his mother to continue to treat the property as her own.
After these proceedings, the matter remained unresolved. The property remained an asset of Gregory’s estate but his mother was entitled to continue to occupy the property.
Why are these cases relevant?
Both these cases involve proceedings that could have been avoided if the intentions of the parties had been clearly documented from the outset.
Putting an agreement in writing is also a good opportunity for the parties to think about all things that might be relevant to a proposed arrangement and consider an exit strategy for themselves.
If you or one of your clients are considering entering into commercial arrangements, particularly with family members, these cases show the importance of speaking with a member of our team to put the proposed arrangements in writing first.