In (Dowsett v King [2019] NSWSC 1459) a fairly typical scenario unfolded. Siblings quarrelled over Mum’s money whilst Mum was still alive. Mum, aged 89 years, had 4 children. She had been very close to one daughter. She had transferred real estate to her. Evidence from bank accounts also showed that $140,000 had been transferred from Mum’s account to the daughter’s account. Legal proceedings were commenced by the son (in Mum’s name) seeking that the property be held on trust for Mum (effectively transferred back to her) and also that the $140,000 be repaid. Evidence revealed that Mum had seen a solicitor about transferring the real estate to the daughter and had made a statement at the time of the transfer (an Affidavit) explaining her reasons for the transfer. The Judge was satisfied that Mum was properly legally advised and knew what she was doing. The $140,000 was a different story. In earlier Tribunal proceedings the daughter had agreed that she was “holding the money” for Mum. The Judge was not persuaded that the $140,000 was a gift. He held that the daughter’s admission in the Tribunal proceedings was critical. Mum’s Will was not consistent with a gift. Overall, he found there was insufficient reason for the Mum to so greatly prefer the daughter above her other three children. The Judge ordered the $140,000 to be repaid plus interest. Clearly it is important to “pick the battle” since the son lost the property argument. However, Judges will listen if the evidence is there and the case is presented appropriately.
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