Last will and testament.

Gift In Life – Challenge In Death?

Challenge A Gift

Yes, it is possible to challenge a gift given by the deceased while they were alive.

In a recent case Anderson v Anderson [2013] the Court had to consider a similar situation. In this case Mrs Anderson died in 2009 aged 81 years. Her main asset was her family home. Mrs Anderson made a Will in 2007 appointing her son John and his wife as her Executors and leaving her property equally between her sons, John and Malcolm. At the same time she executed an enduring power of attorney, in favour of her son John and his wife.

In 2008 Mrs Anderson executed another Will, naming both her sons as Executors and beneficiaries. At the same time as making a new Will Mrs Anderson also signed a Land Transfer form, for her family home in favour of her son Malcolm. The consideration for this Transfer was expressed to be natural love and affection and Mrs Anderson received no money from Malcolm for the property.  For all intents and purposes  Mrs Anderson gifted the family home to her son Malcolm.

Mrs Anderson’s son John made an application to the Court for a declaration that the transfer of the land by Mrs Anderson, was void as she lacked capacity and was under the undue influence of her son Malcolm.

The Court considered the relationship between Mrs Anderson and her son Malcolm, including Malcolm living at the family home and caring for Mrs Anderson. The Court found that Malcolm was in a position of dominance over his mother, where she was sick, isolated and dependent for her day to day care on Malcolm.

The Court found that the execution of the Land Transfer by Mrs Anderson was not the result of a free and voluntary exercise of her independent will. That is, Malcolm had unduly influenced his mother to gift him the family home.

The Court made orders that the transfer of the family home was set aside.  This meant that Mrs Anderson’s other son John, would receive half of the value of the family home.

If you believe that a loved one has been unduly influenced to gift a valuable asset or has been subjected to fraud then you need to seek expert legal advice on what actions you can take to rectify the issue.

If you need advice on undue influence or fraud involving a loved one then you need to seek legal advice from an Expert Wills & Estates Lawyer. You need to speak to the expert lawyers at Sydney Wills Lawyer – We specialise in Wills & Estate Law and pride ourselves on our open and honest communication with clients. 

Call today and ask about our No Win No Fee policy, 9221 2779 or email info@hecken.com.au

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