Christine Smyth Blog – GIFTS AND ESTATE ASSETS

Christine Smyth Blog


Over the Xmas break I saw a news item about the huge online trade in unwanted Xmas gifts.  It reminded me of how I am often instructed that certain items no longer belong to the deceased because it is claimed the deceased gave it away as a gift shortly before s/he died. The most common item is the deceased’s car.  When I call for evidence, I am frequently provided the registration certificate and those involved are surprised and doubtful when I point out that registration is not evidence of ownership.  And so it is that the recent decision of Dowse v Sims provides a timely useful example to illustrate the point. There the Defendant found himself in a spot of bother, when he was discovered to be advertising a van for sale.  The problem was that the Executor of an estate considered the van belonged to the deceased, and so he claimed it formed part of the deceased’s estate. 

The deceased shared with his friend – the Defendant, an interest in a motoring group.  They entered into an arrangement where the deceased purchased a van which was subsequently registered in the Defendant’s name.  The van was used for the purposes of the group.  The deceased’s Executor asserted that despite registration being in the Defendant’s name, the legal ownership of the vehicle was at all times retained by the deceased.   The Executor was ultimately successful.  Central to the success of the action was evidence of the deceased’s intentions when purchasing the vehicle. Importantly, at [12] Reid DCJ said: “Statements of others based on their belief as to the intentions of the deceased are not admissible evidence of such intentions. In order to determine the deceased’s intention it is in my view necessary to consider what the deceased said at the time of the alleged gift or what had been said by the defendant and the deceased to one another to determine whether the van had been a gift or not.” Then at [33] “the onus of establishing that the motor vehicle was a gift rests on the defendant… the relevant intention is that of the deceased, not what the Defendant may have thought at the time of the gift.  It is also important to understand that if the deceased gave the defendant the motor vehicle as a gift at some time, he was not then able to resile  from that gift at a later time.”

Ultimately Reid DCJ ordered the return of the van and costs as agreed, failing which on an indemnity basis.  The purchase price of the van was $21,210.00.  With the documentary evidence being no less than 56 documents, and matter involving an interlocutory determination, it struck me as an economically risky matter to pursue and defend.  But then my decision to give my kids books for Xmas was also a risky purchase! 

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