The High Court has recently denied a son’s appeal for more than a one third share in the family property.

A father’s will left the family bach to his three sons in equal shares. The property had been developed by the father and his sons over many years, with each party contributing their time and skills to develop the property. However, one of the sons claimed he should have a larger share in the inherited bach to reflect the amount of work he had put into the property compared to his brothers.

In his claim, the son argued that an institutional constructive trust had arisen because he had made substantially more contributions to the property than his brothers.

An institutional constructive trust might arise if four factors are satisfied. These are:

  •       If the claimant has, directly or indirectly, contributed to the property;
  •       The claimant has an expectation of an interest in the property;
  •       That interest is reasonable; and
  •       The legal owners reasonably expect to yield that interest to the claimant.

Practically, this means that the son must have made contributions to the family bach to the extent that his father and brothers would expect him to have a larger share of the property.

The Court accepted that the son had made substantial labour contributions to the bach and that he had an expectation of a reasonable interest. However, the son’s appeal failed on the final requirement. The Court decided that the father and brothers could not have expected to yield to the son more than a one third share.

This was held for many reasons. For example, even though the son had spent more time on the property in the earlier years, his brothers had spent more time there in the later years.

Further, the sons developed the property out of enjoyment and to help their father, rather than from any expectation of interest in the property.

The son was also “not surprised” that his father left the property to him and his brothers equally. This was considered to mean that the son himself did not actually expect to have a greater share than his brothers, and the father and brothers could not have expected the son to have a larger share in the property.

If you have any questions about wills, inheritance or trusts it pays to take advice from a professional experienced in the area.


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