Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 18 August 2018.
Helen met Tony and Tina 30 years ago.
When Helen’s husband passes away in 2010, the friendship between Helen, Tony and Tina becomes closer.
Tony and Tina tell Helen that they would like to purchase a property. They are aware that Helen is relatively wealthy. Helen says that she is happy to assist and draws them a cheque in the sum of $500,000.
Helen sends Tony and Tina flowers when they move-in to the property.
A couple of years later, Tony and Tina ask Helen to assist them in purchasing another property. This time Helen gives them a further $85,000.
Soon later, after their relationship deteriorates, Helen commences proceedings to recover the monies.
Helen says that the monies were interest-free loans, repayable on demand and in the alternative that she was the subject of undue influence. She says that when the funds were advanced, she was in her early 80s and lacked close family and emotional support. She says she was vulnerable and grief-stricken.
Tony and Tina say that they were close friends with Helen and that the monies were gifts. They claim that there was no timeframe for repayment of the monies and there was no “intention to create legal relations”.
Tony and Tina say that there was no undue influence because Helen did not suffer from a mental impairment or disability. They say that Helen only wanted repayment after their relationship broke-down.
The court decides that there was no oral loan agreement and concludes that there is no evidence that Tony and Tina took advantage of Helen.
The court observes that Helen could afford the money and ultimately rules the funds to be gifts.
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.
