Joseph Saliba & Anor v Thomas Tarmo [2009] NSWSC 581 (reported)

Published 18 Jan 2010

Author: David Cossalter

Our client’s were close family friends and carers of the deceased. They looked after the deceased when her husband died and later became the fund managers and trustees of the financial affairs as appointed by the Guardianship Tribunal.

Our clients always looked after the deceased out of the goodness of their hearts and on account of the close relationship, when the deceased’s husband passed away the deceased made a promise to our clients they would get half her home for the work they had done and would continue to do. She immediately took our clients to a solicitor and made a Will giving half the house to them and the other half to their nieces which she had minimal contact with. It is noted that the deceased did not have any family in Australia after the passing of her husband.

On account of this request and on account of the promises made, our clients felt obliged to not only look after the deceased but to increase the veracity of the assistance rendered, however with time various friends of the deceased entered into the picture and when the deceased was finally put into a nursing home and these persons convinced the deceased that our clients were not friends, that our clients had no interest in her and only wants to take her money and further that they were being deceitful to the Guardianship Tribunal. In light of all this the deceased changed her Will and gave the majority of her Estate to the nieces in America. Our clients were always honest and corresponded with the Guardianship Tribunal and maintained and forwarded all accounts to the Guardianship Tribunal for review, at no point were they ever questioned as to their honesty and integrity.

It is noted that there was possibility of their being a claim for the mental capacity of the deceased. In this circumstance we were unable to identify that she did lack the testamentary capacity to make a Will even though she was acting irrationally. All was lost and we pursued the matter as to the promise made.

The principle that applies in this situation is one of Promissory Estoppel which is a legal term which means that when somebody makes a promise to you and you act to your detriment they are legally prohibited in reverting or reneging on the promise.

This issue was raised by our contesting wills lawyers with the defendant, however the defendant expressed that no promise was made let alone a detriment suffered by our clients. We opposed this proposition and accordingly the matter was brought before the Court in early 2009. His Honour heard evidence from all parties, particular evidence from our client regarding the assistance provided to the deceased and the sequence of events surrounding the making of the promise and further assistance rendered.

His Honour ultimately found that the promise had been a valid promise within the grounds of promissory estoppel and that our client, in having increased the assistance rendered and having the feeling of obligation to render this assistance due to the promise, awarded our clients half the Estate plus interest plus costs. It is noted that the house was sold for $777,000.00. Had the promise never been reneged our clients would have receiving approximately $380,000.00. On account of the interest and legal costs associated our clients ultimately received an award of $475,000.00.

We note that we were successful in prosecuting our clients rights where a promise was made to them and they placed reliance on this promise to their detriment.

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