In Moore v Aubusson  the plaintiff couple sought a declaration that the defendant executor held the whole of the deceased’s estate on trust for them in equal shares as tenants in common and an order that the estate be transferred to them.
The claim was framed on two bases: a claim in contract and a claim in proprietary estoppel.
The plaintiffs were the neighbours of the deceased, Ms Barbara Murphy. The deceased was the owner of two adjoining properties in Birchgrove: no 66 and no 68 Louisa Road. Those properties comprised the bulk of the deceased’s estate. The plaintiffs moved into no 70 Louisa Road, Birchgrove in about 2001. The plaintiffs’ evidence was that the deceased had expressed to them her unhappiness with redevelopment works being carried out at no 72 Louisa Road. The plaintiffs had contemplated their own redevelopment works that involved a strata subdivision and an extension to the rear of their property, similar to the works being undertaken at no 72.
The plaintiffs argued that the deceased has promised to leave them her whole estate in her Will in return for them looking after her for the rest of her life and for them agreeing not to undertake their desired building works to the extent that those works would impede the view from the deceased’s property.
In fact, the deceased made a Will leaving the neighbours only $25,000.
The plaintiffs claimed that they upheld their end of the agreement, but the deceased did not.
Alternatively, the plaintiffs contended that the deceased and her executors are ‘estopped’ from acting contrary to the promises of a testamentary character that she made to them. In other words, they claimed that the estate could not resile from the deceased’s promise or assurance to act in a certain way (to make a will favourable to the neighbours) and which induced the plaintiffs to change their position to their detriment. They did not pursue their redevelopment works and they spent more time looking after the deceased during her later years so that she would not go into a nursing home in accordance with the deceased’s wishes.
CJ Ward was satisfied that the plaintiffs did meet the elements of proprietary estoppel as they had suffered detriment due to their reliance on the deceased’s promise to them. However, they did not succeed in their claim for the whole of the deceased’s estate valued at $12M as the value of the whole estate was not proportionate to the detriment they claim to have suffered by looking after the deceased. They were still awarded the two properties valued at a very healthy $9M.
 NSWSC 1466 (23 October 2020)