Article by Manny Wood published in the Coffs Coast News Of The Area on 12 August 2022.
During his lifetime, Edward invested in gold bullion and had accumulated 600 ounces, worth over $1 million.
Edward makes a will leaving the gold to his three children, equally.
Three years later, his daughter, Penny takes possession of the gold.
When Edward passes away, two years later, Penny claims that Edward gifted the gold to her and that it does not form part of his estate, with the effect that her siblings do not receive a share of the gold.
Edward’s other two children do not agree that their father gifted the gold to Penny and further claim that if in fact the gift was made, Edward did not have the mental capacity to understand the nature of the gift.
The other children also claim that if their father did have capacity to give the gold to Penny, it was on the basis that she held it for “safekeeping” and had no right to keep the gold for herself.
The children also say that their father had accumulated more gold than Penny has disclosed.
Court action ensues.
Medical evidence reveals that Edward was suffering from some cognitive impairment, a year after Penny took possession of the gold.
Emails reveal that Edward asked Penny on a number of occasions to confirm how much gold was in her possession.
However, later emails reveal that Edward wanted Penny to keep the gold if it meant that she could use the resource to look after her children and not return to full-time employment.
There is also evidence that Edward asked for the gold to be returned shortly before his death.
Penny says that once the gold was gifted to her, the gift was “perfected” and further that in reliance upon the gift, she did not return to full-time employment.
Ultimately, the Court finds that there is insufficient evidence to establish that Edward did not possess sufficient lack of capacity when he gave the gold to Penny and further, that he intended it to be an effective gift that Penny is entitled to retain.
Email Manny Wood, principal solicitor at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.
