In May 2004, John Maxworthy and his wife Eileen Maxworthy transferred their property at Watsons Creek to the son of John by a previous marriage, Chris. At the time. John was 84 and Eileen was 83.
In April 2017, John decided to sell the property and at that time John and Eileen claimed that John held the property on trust for them. It was agreed that the property would be sold and the argument before the court in 2023 was in relation to a claim made by John and Eileen for this money following the sale to be paid to them.
Chris argued that the transfer of the property to him was a gift.
At the time of the transfer of the property in 2004, John and Eileen saw a solicitor and a letter was prepared that the solicitor believed reflected her instructions. The letter said in part: “you are transferring the land to your son Christopher James Maxworthy, with no residual obligations, money, property benefit or advantage remaining or to be obtained by you in respect of such transfer.”
John said in court that he didn’t read the letter.
John said that he had a conversation with Eileen’s daughter that made him fearful of losing the pension because of the size of the Watsons creek property and it was because of that he transferred the Watsons Creek property to John to look after for himself and Eileen. John said in his evidence that he had said to Chris: “You’ll be minding it for us.”
The court did not accept that John did not read or understand the letter prepared by the solicitor that he signed before the transfer took place and preferred the evidence of Chris as to conversations that occurred. As to the evidence that John was fearful of losing the pension his Honour found his evidence implausible because the evidence was that John did not speak to Centrelink nor did he ask the solicitor for advice about the issue.
The court held that the transfer of the Watsons Creek property by John and Eileen to Chris was a gift and that neither the property nor the proceeds of sale following the sale by Chris and his wife Raelene were held on trust for John and Eileen.
This decision highlights that it is important to be clear on any instructions to a solicitor and to read and understand and documents prepared in a transaction before committing to proceed.
