Brothers fight over real estate in father’s will

Published 02 May 2017

Two brothers have taken an inheritance dispute over their father’s will to the NSW Supreme Court after failing to come to an agreement over a piece of real estate.

The siblings’ father died in 2010, leaving a property in Lidcombe to his younger son in his will. However, the older brother claimed that he paid the money to purchase the dwelling and only placed the property in his father’s name to avoid stamp duty while also benefiting from first home owner grants.

As such, he argued that the property was held under an express or implied trust with his father, meaning it should revert to him despite the will.

Key factors of contesting the will

Justice Richard White had to weigh up a number of factors while deciding the case. First, the credibility of both brothers was called into question.

The older brother’s admission that he paid the money for the property and put it under his father’s name to avoid stamp duty amounted to fraud against the state and federal governments.

Before proceedings began, the plaintiff paid back the stamp duty and first home owner grant funds, but Justice White said the revelation showed the man’s honesty was questionable.

His younger brother’s testimony was also contradictory in several places, as well as directly conflicting with evidence that a solicitor provided in a filenote.

Justice White also had to decide on a matter regarding money that the older brother sent to his sibling over the years, which amounted to nearly $300,000. The younger brother claimed these were gifts, while his brother argued they were loans.

Will dispute decision

The judge ruled that the older brother had paid money for the property and, despite the fraudulent activity, should be the official proprietor of the dwelling.

A crucial piece of evidence in this regard was a meeting between the two brothers – attended by a solicitor – in which the younger sibling said he was only holding the property on behalf of his brother.

“I know the property is my brother [sic]. I will not take it. Is my brother property, I know that only my father wants to help me [sic],” notes from the meeting said.

Justice White ordered that the younger brother should “do all that is necessary” to ensure the handover runs smoothly within 28 days.

However, the younger brother will not have to pay back the $300,000 he received from his sibling, with the judge ruling that they were gifts and thus not recoverable.

Would you like to discuss inheritance disputes with experienced lawyers? Please contact us today.

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