Gors v Henderson – no written agreement was downfall

Gors v Henderson [1998] WASC 273

This is another case where there was no agreement in writing.

Two step grandchildren had arranged to look after their step grandmother, Mrs Spicer, in a home that the Mrs Spicer would purchase. The step granddaughters alleged that an agreement was reached whereby if they looked after her full-time in the new home, Mrs Spicer would leave that home to them in her Will.

The new home was purchased and one of the step grandchildren did move in, with the other providing care on weekends.

And Mrs Spicer did make a new Will in which she left the property to the granddaughters.

However, Mrs Spicer became increasingly disillusioned with the care she was receiving, although objectively it was found that the care was reasonable.

The relationship between Mrs Spicer and her granddaughters deteriorated and she eventually went to live somewhere else. She later changed her Will so as to exclude the granddaughters.

The court found that there was no enforceable agreement between the parties because there was no intention by the parties to enter into legal relations. The arrangement was just too vague and unparticularised. The only thing pleaded by the granddaughters was that Mrs Spicer “agreed to leave on her death to the plaintiffs a residential property on the outskirts of the Perth metropolitan area in consideration of the plaintiffs agreeing to take care of her on a full-time basis”.

The court went on to say that even if there was an enforceable agreement the fact that it was not in writing was fatal. The legal reason for this was the existence of legislation which provided that for an agreement for the transfer of real estate to be enforceable it must be in writing. Accordingly, the lack of writing was fatal to the claims made by the granddaughters.

There is similar legislation in all States of Australia.

For there to have been an enforceable contract in these circumstances the granddaughters and Mrs Spicer should have entered into a written agreement containing not only the essential terms – that the property would be left to the granddaughters in her Will on the basis that they provided full-time care – but also further particulars that would give greater certainty as to what was agreed to. For example, what property would be the subject of the agreement, what was the nature of care that would be provided and who would provide it, what would happen if any of the granddaughters predeceased Mrs Spicer, and what would happen if Mrs Spicer required greater care than the granddaughters could provide at home.

What also went against the granddaughters was that this was a family arrangement of an informal kind in which each of the parties took the others on trust. The courts are anxious to find clear intention to enter into legal relations where there is an alleged agreement between family members.