What happens if an agreement as regards living arrangements and financial contributions in relation to same is not recorded in writing?
Consider the case of Susan Kent who invited her elderly widowed mother, Avis, to live with her after her father’s death in 2006.
Avis came to live in Cairns in a granny flat at the Edge Hill home of Susan and husband Michael after her Townsville home had sold for $323,000.
A year later, Avis agreed to buy one of the units in a duplex being renovated by Michael’s building company at nearby Whitfield. She paid $323,000 upfront—the entire proceeds of her house sale – and considered that to have been the unit’s purchase price.
Susan and Michael claimed though that because the other unit in the duplex had sold for a net $380,000, a further $57,000 was still to be paid.
Despite this disagreement, Avis moved in 2008 into the unit and made no further payments.
Susan and Michael agreed to transfer title to Avis when the final payment was made, but until then the legal title to the unit remained 99% with the company and 1% with Susan.
Five years later, Avis continued to occupy the unit but had paid no rates or body corporate charges during her entire tenure. At about that time, Susan’s marriage ended.
To resolve the parties property rights in the Family Court, Susan agreed to pay $39,000 to her ex-husband to secure a transfer to her of full legal title. The payment was for his interest in the unpaid purchase price and his share of what the couple had paid for rates and body corporate fees associated with the unit.
The Family Court required Avis to obtain independent legal advice before approving the transfer to Susan.
Avis’s lawyer wrote to the Court confirming Avis had made “suitable arrangements” for occupancy but provided no details.
Neither Avis nor Susan took any steps to record the agreed living arrangements in writing.
Avis lived six more years in the Whitfield unit before she died in August 2019.
Susan and her brother Greg were equal beneficiaries under her will and inevitably disagreed on how their mother’s interest was to be treated.
Greg claimed a half share of the unit’s present value. Susan contended that she and Avis had agreed that title in the unit would remain with her in consideration for Susan securing her mother’s right to reside there for her lifetime.
Greg sued as executor for the estate and in his capacity as beneficiary.
Susan had no evidence – because the arrangement had not been documented – to back up her claim that the beneficial interest in the unit was to have passed to her upon her securing Avis’ right to reside in it by payment to Michael of the $39,000.
After a four-year battle between them, Judge Joshua Treviño found Avis had not waived her interest by the consent given to the transfer of the title to Susan in the Family Court proceedings — she had only provided that consent to ensure continued occupancy.
He reasoned that Susan’s legal title did not erase that interest but rather that equity imposed a constructive trust in favour of the estate.
His ruling in the District Court at Cairns was that Avis’s estate had an 85% equitable interest in the unit by reason of the $323,000 payment made by Avis in 2008.
As equal beneficiaries, Susan and Greg will share 85% of the net sale price of the Whitfield unit and Susan will retain the remaining 15%.
Stallan & Anor v Kent [2025] QDC 177, Trevino KC DCJ, 17 November 2025
