Frohlich v Herborn [2012] NSWSC 338

Frohlich v Herborn [2012] NSWSC 338

Robert did not prove the alleged agreement that Walter would hold or give him half of the Longueville Property as a whole. The evidence established no more than a common understanding that Robert's funding of the second storey would give him an interest in half of the expanded dwelling, not in half of the land and improvements as a whole, and the pleaded constructive trust therefore failed. However, the 2009 will's provision of a one-third interest in the Longueville Property did no more than recognise and recoup Robert's investment in the property, while making no provision for him qua child in respect of the remaining value of that property. Given Robert's financial contribution, care...

Jurisdiction
Australia
Judgment Date
10 April 2012
Procedural Posture
Equity Division Proceedings Concerning Constructive Trust and Family Provision Under the Succession Act 2006 / Principal Judgment After Hearing
Outcome
Constructive trust claim dismissed; family provision claim allowed in part.
Legal Topics
['constructive Trust' 'common Intention Constructive Trust' 'proprietary Estoppel' 'family Provision' 'adequate Provision for Proper Maintenance and Advancement in Life' 'adult Child Claim' 'succession Act 2006 S 59']
['trusts' 'succession'] ['constructive Trust' 'common Intention Constructive Trust' 'proprietary Estoppel' 'family Provision' 'adequate Provision for Proper Maintenance and Advancement in Life' 'adult Child Claim' 'succession Act 2006 S 59']

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Procedural Posture

Equity Division Proceedings Concerning Constructive Trust and Family Provision Under the Succession Act 2006 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Walter Frohlich held the Longueville Property on constructive trust for Robert Frohlich as to a half share.' 'Whether Walter Frohlich promised in 1993 to leave Robert Frohlich half the Longueville Property in his will and whether Robert acted to his detriment in reliance on that promise.' "Whether adequate provision for Robert Frohlich's proper maintenance, education and advancement in life was made by Walter Frohlich's will." "If adequate provision was not made, what further provision should be made from Walter Frohlich's estate under s 59 of the Succession Act 2006."]

Ratio Decidendi

Robert did not prove the alleged agreement that Walter would hold or give him half of the Longueville Property as a whole. The evidence established no more than a common understanding that Robert's funding of the second storey would give him an interest in half of the expanded dwelling, not in half of the land and improvements as a whole, and the pleaded constructive trust therefore failed. However, the 2009 will's provision of a one-third interest in the Longueville Property did no more than recognise and recoup Robert's investment in the property, while making no provision for him qua child in respect of the remaining value of that property. Given Robert's financial contribution, care...

Court Disposition

Constructive trust claim dismissed; family provision claim allowed in part.

Orders

  • ['Property not held on constructive trust as to a half share as claimed by the plaintiff.' 'Adequate provision for the proper maintenance and advancement in life was not made for the plaintiff in the will of the deceased.' "The plaintiff was left with a one-third interest in the Longueville Property and further...