Legal Hypothetical: Bad blood between brothers

BARRY and Michelle have two children, David and Peter.

Sadly, Michelle passes-away after battling Alzheimer’s disease for many years.

Barry talks to David about building a home at the rear of David’s property.

Barry sells the family home and with the proceeds of sale, pays out David’s existing mortgage of $60,000 and constructs a new dwelling on David’s land.

David and Barry talk to a lawyer about registering Barry as a co-owner of the property as to 50 percent as tenants in common.

A Transfer form is filled-in but never witnessed, no stamp duty was paid and the Transfer was never registered.

Barry moves into the new dwelling and passes-away ten years later.

After Barry’s death, Peter discovers the Transfer documentation and commences proceedings against David, claiming that Barry’s estate is entitled to a 50 percent share in David’s property.

Peter argues that there was a “common intention” between Barry and David, that Barry held a 50 percent interest in the property, that Barry relied on this understanding to his detriment and that it is unconscionable for David to deny Barry’s interest in the property.

The Court states that the requisite common intention can be inferred by financial contributions or the parties’ conduct.

However, the Court says that it is impossible to know whether Barry intended to have an interest in David’s property, given that they never registered the Transfer, that Barry did not make a will referring to any interest in David’s property and given that there were no other witnesses to any alleged agreement.

Ultimately, the Court finds that Peter was unable to demonstrate on the “balance of probabilities” that there was a common intention that Barry was to acquire an interest in the property.

Instead, the Court finds it was likely that Barry was simply happy to live mortgage free and rent free for life, with David’s support, in a location which was convenient and close to health care.

Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at or call him on (02) 66 487 487.

This column is only accurate at today’s date and is not legal advice.

By Manny WOOD, Solicitor

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