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How to prevent family members from challenging your will

In the Wodzicki case this month, a daughter with whom we will refer to as "A"  lived in a property that was purchased in the joint names of her father and his new wife. "A" had agreed with her father and the wife that she should have life interest in the property and her dad promised to transfer the legal title to her when a loan against the property had been paid off although the wife said that she had no knowledge of this.

A resided there & maintained the property for many years without contribution from either her dad or his wife. Her dad visited her at the property occasionally. When dad died, the wife tried to bargain with A that she would get the property in return  for agreeing that she would give up all claims against dad’s  estate. When this did not work the wife brought possession proceedings and A counterclaimed that she had  a beneficial interest due to constructive trust or proprietary estoppel.

The trial judge held that the claimant held the legal title of a property on trust with the wife having a life interest and any other interests  determined after an accounting process was undertaken.

The judge said this was a common intention constructive trust but refused to declare that A owned 100% owner even thought the wife provided no evidence of contribution.

The  Appeal Court distinguished this case from Stack v Dowden [2007]  and Jones v Kernott [2011] stressing  the closeness of the parties in those cases and the lack of closeness here.   The court gave expression to the intention of the parties.

The Court said the shares of the residual beneficial interest should be determined as a resulting trust by way of an accounting hearing, as originally ruled.

So the daughter was able to persuade two courts that based on what her dad had said and then acting upon it the daughter was able to keep her home and have a court determine what interest if any the new wife had in it.