A sister-in-law’s
twenty years’ rent-free accommodation gave no specific legal right to permanent
occupation, decided the Court of Appeal when confirming removal of a caveat
over title to the Wakenshaw family bach at Bethell’s beach on Auckland’s west
coast.
Jan Wakenshaw lodged
the caveat to protect a claimed interest arising, she said, from a trust in
favour of her late husband. The bach has
been in Wakenshaw family ownership since 1972, the Court was told. Matriarch Mary Wakenshaw took sole ownership nine
years later in a split of relationship assets after her marriage came to an
end. As is common in most extended
families, various family members occupied the bach rent-free at various times
for various lengths of time. Ad hoc
extensions and maintenance were carried out.
Jan and husband Norman shifted on to the Bethell’s beach property
shortly after their 1985 marriage.
Norman died in 2014. His mother
Mary died the following year. Jan
subsequently learnt that Mary had transferred title for the bach to another
son, Donald, some months before her death.
She feared Donald would sell, forcing her to leave. She says Mary had repeatedly stated whilst
alive that Jan and her children could stay on the property and would never have
to move from their home. To block any
potential sale, Jan lodged a caveat against title to the bach claiming Donald
held title in trust with herself as a beneficiary under an implied or
constructive trust.
The Court said any evidence
that her late husband provided funds and labour to upgrade the bach might serve
to see a trust implied in his favour, but not her. Jan had no right to pursue any claim on his
behalf; Norman died without a will and no-one has yet applied to the court for
appointment as administrator of his estate.
Her payment of ongoing occupation expenses would be unlikely to support
any argument for a direct interest in the property, said the Court, when
balanced against her rent-free occupation of more than two decades.
Donald has taken no
steps to evict his widowed sister-in-law, the Court was told.
Wakenshaw
v. Wakenshaw – Court of Appeal (14.06.17)
17.068