Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 24 November 2018.
Mary and her son, Daniel purchase a property together as joint tenants in the early 1980s. Half the purchase price is paid by Mary and they obtain a home loan to fund the balance.
Daniel earns a small income, which with Mary’s income, allows them to service and soon pay-out the loan.
Mary’s other son, Peter is an unemployed minor.
Mary, Daniel and Peter live in the home until Daniel moves-out 10 years later.
Peter continues to live in the property with Mary for a further 20 years, looking after her until her death.
Mary makes a will leaving the whole of her estate to Peter.
Before Mary dies, she tells Peter that Daniel has agreed to give him the house upon her death.
After Mary dies, Daniel receives the whole of the title to the property by way of survivorship by virtue of owning the property with Mary as joint tenants. This means that the house does not form part of Mary’s estate and her will cannot leave it to Peter.
Daniel decides to keep the house for himself.
In the Supreme Court, Peter argues that Daniel holds half of the property on trust for his mother’s estate.
Daniel argues that the “presumption of advancement” should apply, meaning that there is a legal presumption that his mother gifted him the right of survivorship and that he is entitled to receive the property.
Given the passage of time, the court has very little by way of reliable evidence regarding the initial purchase and ultimately finds that there is insufficient evidence to rebut the presumption of advancement.
The court orders that Daniel is legally entitled to the property and what he now does with it is his own moral concern.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
