The recent case of Hans-Egon Bruno Bernhard Metzner & Anor v Jaqueline Rita Metzner [2021] NSWSC 1336 considered whether parents who a purchased a property in their daughter’s name could rebut the “presumption of advancement” (the presumption that the property was intended to be a gift).

The parents sought an order to have the property transferred to them. They argued that they had only agreed with Jackie, the daughter, to be the registered owner on the basis of her representations that this would prevent her sister from interfering with the parents intention to leave the property to Jackie upon their death, and because she had promised to regard her parents as the true owners of the property until their deaths.

The parents said that their daughter had taken unconscionable advantage of them by accepting the benefit of the legal ownership of the property, knowing the basis on which it had been conferred. They sought an order that Jackie held the property on resulting or constructive trust for them. In response, Jackie argued that her parents had gifted the property to her.

An interesting point about this case is that the parents had two daughters, Jackie and Madeline, and from 2004-2018, they had almost no contact with Madeline but were very close with Jackie and had left the entirety of their estates to her in their Wills. However, in late 2018 the parents had changed their wills such that Madeline was now the object of their affection and their new Wills in 2019 left the bulk of the estates to Madeline with Jackie to receive nothing.

The father was not able to give evidence in his proceeding on account of his Alzheimer dementia and the mother was found by the court to be an unreliable witness for lack of credibility.

Ultimately, the Court found that the Plaintiff’s had not discharged their onus of rebutting the presumption of advancement. Although they did find that the plaintiffs had a life interest in the property such that Jackie’s beneficial ownership in the property was not absolute.

This case demonstrates the difficulty of un-doing a transaction whereby the legal title to a property has been recorded in the register under another’s name.

Leave a Reply

%d bloggers like this: