Proprietary estoppel in NSW succession disputes has become an increasing point of tension in modern estate planning. The recent case of Bushell v George [2025] NSWSC 1347 showed that high-value rural assets can trigger complex legal issues. Late changes to inheritance expectations created dispute among three siblings. The matter raised questions about estoppel, early inheritance and family provision claims. The case provides insight into the pressures shaping succession, inheritance and family dynamics in New South Wales.
Background
The father of three adult siblings passed away in late 2021. He left $600,000 to each of his elder son and daughter, paid over five years in equal instalments. At the time of his death, he was a farmer who owned eight parcels of land in the Riverina region of New South Wales.
Prior to his death, the father transferred farming properties worth more than $23 million and spanning 3000 hectares. A year before his passing, he and his youngest son entered a contract and loan agreement for the purchase of the main farm valued at $13 million. The son agreed to repay the amount on interest at 0.75% per annum over 30 years. The agreement required the son to repay only $1.2 million over five years plus interest, with the balance treated as a gift.
Justice Hmelnitsky in the Supreme Court of NSW noted that the eldest siblings pursued tertiary education for non-farming careers. The youngest son, although doubtful at times, remained fully committed to farming the land for many years.
As the plaintiffs in the case, the two eldest siblings claimed that these transactions did not reflect the representations made to them over time by their late father. These representations include an eventual equal three-way split of the farming land to which they claim they relied to their own detriment.
Legal Issues Raised
Proprietary Estoppel
As an equitable doctrine, it prevents a person from denying another’s interest in land when doing so would be unconscionable. The claimant must show a promise was made, that they reasonably believed and relied on it, and that they suffered loss because of that reliance.
In the case, the following questions were raised:
- Whether the father had made clear and unambiguous promises that each child would receive a one-third share of the farm?
- Whether the plaintiffs’ reliance on those alleged promises was reasonable in the circumstances?
- Whether the plaintiffs acted to their detriment in reliance on the promises (e.g., gave up opportunities)?
- Whether any detriment was causally connected to the alleged assurances by their father?
His Honour referenced Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 at [6] that proprietary estoppel by encouragement is:
“…founded in an assumption as to the future acquisition of ownership of property which has been induced by a representation or promise upon which there has been detrimental reliance by the plaintiff.”
His Honour continued with reference to MCI [2004] EWCA Civ 957; [2004] 2 All ER (Comm) 833 at 844.”
“Whether any, and if so what, representation has been made is to be judged ‘objectively according to the impact that whatever is said [or done] may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee’
His Honour emphasised whether the representor made a clear and unequivocal promise. The Court stated that exact words alone do not determine a promise. The question is whether it was reasonable for the promisee to interpret and rely on those words.
Family Provision Framework
A Family provision claim is an application that may be made to the Supreme Court of NSW by individuals who claim they have not been adequately provided under the will of a deceased person. A court order may be made in order to support that individual should their claim be successful in ensuring maintenance and support. Section 59 of the Succession Act 2006 NSW (‘The Act’) outlines when a family provision order can be made.
Section 60 of the Act provides a guide as to the matters to be considered for the purposes of determining whether the applicant in favor of the order is an ‘eligible person’ and whether to make a family provision order.
Under this section the following factors include:
- The nature and extent of the deceased persons estate
- The Applicant’s financial resources and needs (both present and future)
- The relationship between the applicant and the deceased person, including the nature and duration
- The age of the applicant
- The nature and extent of any obligations or responsibilities owed by the deceased person to the applicant
In the case, the following questions were raised:
- Whether their father’s will made adequate and proper provision for each plaintiff.
- Whether the plaintiffs’ respective financial position and relationship with the deceased rein enforced a additional provision.
- Whether the Court should order monetary provision from the notional estate despite the deceased’s intention to keep the farm intact.
- Whether one plaintiff’s existing legacy was sufficient, and whether the other required further provision to meet proper maintenance and advancement.
The Court’s Decision
- Dismissed each plaintiff’s proprietary estoppel claim
- Dismissed the first plaintiffs claim for further family provision
- Allowed further provision for the second plaintiff
- The Court rejected the proprietary estoppel claims. It held that although the father may have made remarks indicating an intention to divide the farm, those remarks were not sufficiently clear or binding as “promises” and it was not reasonable for the plaintiffs to rely on them as assurances of future ownership.
- Whilst detrimental reliance may have been demonstrated in a genuine belief in a promise, the plaintiff’s choice of study, career and residence was not sufficiently connected.
- The Court dismissed the claim of the first plaintiff to which the money left to him under the will was adequate, given his financial position and estrangement from the father.
- The Court did, however, allow some further provision for the second plaintiff as she was awarded an additional provision of $300,000 from the notional estate
What did the decision demonstrate?
It is clear that when alleged promises are made are vague, difficulty arises in succeeding with a proprietary estoppel claim. The Court emphasised that broader life choices, such as selecting a university degree or career, do not show causal reliance on a promise. A claimant must show clear assurance, reasonable reliance and detriment that can be casually connected to that reliance.
The judgment highlighted the importance of testamentary intention. Casual remarks or long-term “talk” about inheritance rarely create enforceable proprietary interests. This applies especially when those intentions are not written or ownership structures differ. Equity applied proportionally to the circumstances. The Court viewed the farm as a large asset. Thus, it was not suited to division and preferred monetary adjustment to preserve viability and reflect fairness. The Court recognised farmland continuity as a legitimate objective
Conclusion
The case has proved to be much more than a sibling rivalry and rather developed into a precautionary tale for high-value estate planning in NSW. The decision in Bushell v George underscores the difficulty of turning informal family expectations into enforceable legal rights. The Court’s rejection of the proprietary estoppel claims highlights the strict requirements of clarity, reliance and detriment. Its approach to family provision orders shows that fairness does not always mean equality. The case reinforces the importance of documented intentions. It also reinforces the need for careful estate planning where significant agricultural or family assets exist.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
By Brooke Nguyen, Solicitor
