Beware of promises from little old ladies

          Years ago I had a client whose story was sad and believable. She came across as being kind-hearted and a bit naïve. She had an elderly spinster aunt who didn’t have many friends and was all alone in the world. This elderly (and rapidly ageing) aunt persuaded my client to give up her job and devote her time as a full time ‘on call servant’ (my words) assisting her aunt with every command, driving her around, cleaning her house, making her meals, and putting up with her difficult personality. She would have done some of this anyway out of a sense of family duty but she stopped working so that she would always be available because the aunt had requested her to do so promising that in return she would look after my client in her will.

Fast forward a few years, and the elderly aunt has died. My client by this stage is worn out and exhausted (emotionally and physically) from fulfilling her side of the bargain.

Imagine her shock when it is revealed that the will leaves the estate amongst nearly a dozen different charities, and that there is no mention of my client.

My client had no appetite, emotional energy or funds for litigation.

As an appeal to the humanity of all involved she instructed me to write a letter to the executor outlining the situation and asking whether the charities might each consider authorising a $10,000 ‘gift’ to our client from each of their respective portions, which when combined would have yielded her a sum of money that might modestly compensate for her loss of wages and time spent and would have left substantial and attractive balances remaining for each of the charities. It seemed like a reasonable proposal.

If only my poor client had gotten something in writing to record this agreement.

Little old ladies can be dangerous, I have said this (tongue in cheek) for most of my career having seen too many times the wake of destruction left by many a little old lady, whether deliberate or in deliberate on her part. (I suppose at this point I should point out, to be fair, that I have seen elderly men leave wakes of destruction also …. .)

In any event you might have seen a case on the news from Sydney regarding the story of a little old lady and her neighbours, on a very nice street, in a very expensive suburb with magnificent water views. Unfortunately the Judge was not able to go and see the water views, even though they were an integral part of the story. Here is a quote from paragraph 5 of the Judgement.

“The three relevant properties (i.e., No’s 66-70) extend down to Sydney Harbour. Relevantly, the deceased’s upstairs unit at No 68 has views of Sydney Harbour, which views (on the evidence before me) the deceased was keen to retain. I did not accede to an application during the course of the hearing for a view of the properties in order to see that water view for myself – not least because of what I perceived would be the difficulties in conducting a physical view during the course of what was a virtual hearing in the midst of the current COVID-19 pandemic (see T 249) (and it was not suggested that judicial notice could not be taken of the generally perceived advantage, at least in the context of the real estate market, of Sydney Harbour water views).”

The case is Moore v Aubusson [2020] NSWSC 1466 and judgement was delivered in Sydney on 23 October 2020. The properties in question are 66, 68 and 70 Louisa Road, Birchgrove NSW. You can look up the street up on google images and speculate as to what the views must be like.

The plaintiffs (whom I refer to as ‘the neighbours’) bought number 70, a property which one witness described as “charmless” and which the neighbours described as ‘the worst property in the best street”. They bought this property with plans to substantially improve it and then sell.

Enter the little old lady next door. This little old lady was no slouch, she had not only participated actively in what one witness indicated was the neighbourhood hobby of lodging objections to each other’s development applications, but the Judge saw fit to mention that in respect of another redevelopment happening at number 72 on the same street, she had apparently been “ordered off the site after attempting to enter the site to check its compliance with the approved plans herself” (the above being an excerpt of paragraph 6 of the judgement).

The little old lady is alleged by the neighbours to have been most upset about their development plans and to have obtained a twofold promise from them to the effect that (1) they would not to proceed with any plans that would obscure her water view while she was alive, and (2) that they would look after her for the rest of her life and receive her estate in return. I bet you’re not surprised to learn that there was no reflection of this alleged promise in writing anywhere, or in her Will.

What ensued was a lengthy trial (conducted virtually) in which witnesses of all descriptions were called and an incredible amount of sometimes conflicting evidence was put before the court along with very detailed submissions about concepts of contract and equity.

The Judge didn’t seem overly enthusiastic about the evidence given by the neighbours (although he didn’t categorically dismiss their evidence) but in the end he felt there was enough evidence given by disinterested witnesses to persuade him to conclude that there had been a promise of sorts. The practical outcome of the Judge’s decision was that the neighbours received the properties, ie 66 and 68, but not the little old lady’s whole estate.

Obviously it would have been much cheaper for an agreement, and any later variations of it, to have been recorded in writing. But we know how often this doesn’t happen, and that unfortunately, and confusingly, the absence of a written agreement does not of itself prove the absence of an agreement.

So what where the executors to do in this instance? They have no way of knowing whether the agreement did or did not exist and they have to find out what their obligations are in respect of distributing the estate, so in this case the matter went through a lengthy trial and a judicial determination. I do not know what the costs outcome was, but I can say categorically, that this recent judgement only confirms my view that promises made by little old ladies are problematic.