RAPLEY v FERRARI [1990] NSWCA 153

RAPLEY v FERRARI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and HANDLEY JJA 27 June, 10 August 1990 [1990] NSWCA 153

TESTATORS FAMILY MAINTENANCE — No estate available to satisfy orders under Act — Contract to make Will giving testamentary option confers equitable interest on promisee during lifetime of testator — Promisee consents to promissor making new will — whether variation or rescission of contract Held: Contract varied not rescinded and following death of testator residuary estate held on constructive trust for promisees. No estate available to satisfy orders under the Act.

Testators Family Maintenance Act 1916 Schaefer v Schumann [1972] AC 572 O'Neill v O'Connell (1946) 72 CLR 101 Perpetual Executors v Commissioner of Probate Duties (1981) VR 91 Morris v Baron [1918] AC 1 Nathan's Merchandise (Vic) Pty Limited v Tallerman and Co Pty Limited [1956] 57 SR (NSW) 416 Electronic Industries Limited v David Jones Limited (1954) 91 CLR 288 Birmingham v Renfrew (1937) 57 CLR 666 ORDER: Appeal dismissed with costs

Mahoney JA The facts and the issues are detailed in the judgment of Handley JA which I have had the advantage of reading.

The transaction between Mr and Mrs Ferrari and the deceased in 1959 was intended to create legal rights. The rights created included, inter alia, the right of Mr and Mrs Ferrari to have the deceased execute, and agree not to revoke, a will by which they were given an option to purchase the relevant land for $2500. For that, they gave the consideration set forth in the written agreement then made, namely, a promise to care for the deceased until his death.

That right, in my opinion, created in them such an interest in the land as could have been protected by an injunction if the deceased had, without their consent, purported to revoke the will and so deprive them of the option: see Schaefer v Schuhmann (1972) AC 572; Palmer v Bank of New South Wales 133 CLR 150.