"You Can Have It - It Will Be Yours": When a Family Promise About a House Isn't Enough

Families make promises about property all the time. “Move in and look after the place it’ll be yours one day.” “Do the renovations, and you can live here as long as you like.” These assurances are usually made with real affection and every intention of following through. But intentions change, circumstances shift, and years later a casual promise around the kitchen table can become the subject of an expensive court battle, one that pits a person’s memory of what was said against the hard reality of what can actually be proved.

A recent decision of the Supreme Court of New South Wales, McFarlane v McFarlane [2026] NSWSC 772, is a vivid example. An 88-year-old woman wanted to sell her home to fund a move into a retirement village. Her daughter-in-law refused to leave, insisting she had been promised she could live there for life and would inherit the house. The Court’s careful reasons are essential reading for anyone who has made, received, or is relying on a family promise about property.

Proprietary estoppel and the promise you can enforce

The general rule is that a promise to give someone property, or to leave it to them in a will, is not binding. A will can be changed at any time, and an informal promise is not a contract. But equity, the body of law concerned with fairness and conscience, recognises an important exception known as 'proprietary estoppel'. In the right circumstances, it can prevent a property owner from going back on a promise, even to the point of compelling them to transfer or leave the property as promised.

The modern elements were confirmed by the High Court in Kramer v Stone [2024] HCA 48, drawing on Waltons Stores (Interstate) Ltd v Maher. To establish a proprietary estoppel based on a promise, a claimant must show: first, a clear and unequivocal promise by the owner; second, that a reasonable person in the owner’s position would have expected the promise to be relied upon; third, reliance that the claimant acted (or did not act) in a way they would not have but for the promise; and fourth, detriment that the claimant would be left worse off if the promise were not honoured. Only if all four are made out does the Court ask what remedy is needed to prevent the detriment.

Two further points matter. Where the promise is to leave property by will, the Court is especially cautious: because wills are inherently revocable, the claimant must show the assurance was understood to be effectively irrevocable, not just a statement of present intention. And a court will be wary of accepting evidence of long-ago conversations that were never written down. The classic warning in Watson v Foxman is that memory is fallible and, consciously or not, reconstructs the past to suit present interests.

The facts: a Bronte home, a family meeting, and a decade of assurances

Anne McFarlane, aged 88, owned a substantial home in Bronte that had been in her family for generations, now worth around $9 million and her only significant asset. Around 2012, she discussed with her family the idea that her son Warick and his wife Annabel, and their children, would move into the large house while a granny flat was built for Anne to live in. Warick, a builder, carried out the renovations; Anne paid for them and paid Warick a weekly wage for his work. Annabel and the children moved in around 2018, and Anne moved into the granny flat.

Annabel said that at a “family meeting” around 2012, and on many occasions afterwards, Anne had promised that she and Warick could live in the house and would inherit it. She pointed to statements like “You can have it. It will be yours" and “You will live in the house, and you will get the house when I die.” Over the following years she said Anne repeated similar sentiments “This is your house." “I’m going to change my will because this house belongs to you and Warick.”

By 2024, everything had changed. Annabel and Warick had separated (against a background of serious allegations of family violence by Warick), Warick had moved out, and Anne, now elderly and needing funds, wanted to sell the house to move into a retirement village. When Anne sought possession, Annabel resisted, relying on proprietary estoppel and cross-claiming for a declaration that Anne held the house on trust for her and Warick. Tellingly, before the hearing Anne made an open offer to buy a suitable home for Annabel and the children to live in rent-free for years; Annabel declined it, holding out for the house itself.

The decision: no clear promise, no reliance, and a disproportionate claim

Justice Cavanagh dismissed Annabel’s claim and granted Anne possession. Each element of the estoppel failed.

No clear and unequivocal promise. The Court was not satisfied Anne had made the promise Annabel asserted. The alleged assurance rested on conversations from more than 14 years earlier, with no note, email or document recording it, and the contemporaneous documents actually pointed the other way. Crucially, even on Annabel’s own account, Anne’s words came bundled with the statement that the other sons, Mark and Tony, would receive other family properties. Read in context, “you will get the house” was not an unconditional, irrevocable promise that Warick and Annabel would take the whole property no matter what, regardless of whether the other children received anything. Anne’s known desire, repeatedly acknowledged by Annabel was that her three sons be treated equally, which is exactly what Anne’s wills provided for.

Annabel’s own emails undid her. In 2013 she had written about Warick having to “pay out Tony and Mark at the end of the day" and under cross-examination conceded that she understood the house would come to them only if they bought out the brothers or gave up other property so that things were equal. That was fundamentally inconsistent with the unconditional promise she was now asserting.

No reliance. The Court did not accept that Annabel acted as she did because of the promise. She helped with the renovations because she and Warick were going to live in the house; Warick was paid for his building work, and the money he contributed was treated as a loan that Anne repaid. Annabel moved into a large rent-free home in Bronte, an obvious benefit not on the faith of a distant inheritance. And the Court was not persuaded she endured a difficult marriage in reliance on a promise about the house; nowhere in her extensive affidavit did she actually say so. The suggestion that every major life decision since 2012 flowed from Anne’s promise “smack[ed] of hindsight".

A disproportionate remedy. Even if a promise had been made, the Court held it would not be unconscionable for Anne to resile from it 14 years on. Circumstances had transformed: the marriage had ended, Warick had left, Anne had already given each son more than $2 million from the sale of another property, and the Bronte home was now her only asset. To enforce the claim would leave Anne unable to fund her own retirement, effectively confined to the granny flat, and her other two sons with almost nothing, a result “completely disproportionate and unfair". Anne had, in any event, remained generous, offering Annabel alternative rent-free accommodation that Annabel refused.

The result: judgment for possession, the cross-claim dismissed, and Annabel ordered to pay costs.

The lessons for families

McFarlane is a cautionary tale on every side of a family property arrangement.

A promise you cannot prove may be no promise at all. Annabel’s case turned on recollections of conversations from 2012 with nothing in writing to support them. If you are relying on an assurance that you will receive property, get it documented ideally in a properly drafted agreement or, at the very least, in clear contemporaneous writing. Undocumented “you’ll get the house” promises are extraordinarily hard to enforce.

Context is everything, and your own words will be read back to you. What sank Annabel’s case was not just the absence of a written promise but the presence of her own emails showing she understood the arrangement was conditional on equalising things between the brothers. Casual messages sent years ago can decide a case.

Testamentary promises are especially fragile. Because a will can always be changed, a promise to “leave you the house” will rarely be enforced unless it was clearly meant to be irrevocable. A vague assurance of future generosity is not enough.

Circumstances change and equity looks at the present. Even a genuine promise can lose its force when the world moves on: a separation, a death, a change in the owner’s finances or needs. Anyone banking on a long-ago promise should understand that a court weighs today’s fairness, not just yesterday’s words.

For the property owner: say what you mean, and record it. Much of this dispute could have been avoided if Anne’s intentions had been clearly documented from the outset and revisited as things changed. If you want family to live in your home without giving it away, put the arrangement in writing: who can live there, on what terms, and what happens if circumstances change. Loose language of generosity invites litigation.

Consider the whole family. Anne’s overriding wish was to treat her children equally. Where one child (or their spouse) is to receive more, that should be planned, explained and documented, so the estate plan is coherent and defensible rather than a battleground.

How Shire Legal can help

Promises about property, who can live where, and who inherits what are among the most emotionally and legally fraught issues a family can face. At Shire Legal, we help clients across the Sutherland Shire and beyond to document family property arrangements properly, to prepare clear and considered wills and estate plans, and to advise on and resolve proprietary estoppel and inheritance disputes, whether you are making a claim or defending one.

If you would like advice tailored to your situation, contact Shire Legal or book an appointment to speak with our team.

This blog provides general information and should not be construed as legal advice. Laws may have changed since the publication of this content. We recommend consulting with a qualified legal professional to ensure compliance with current legislation and to address specific circumstances.