Legal Research
Cases
Wilkins v Wilkins

Wilkins v Wilkins

Case [2007] VSC 100 12 April 2007

Resulting Trust

Admissibility of Evidence

Equitable Remedies

Trusts & Equity

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7219 of 2006

GREGORY BRIAN WILKINS	Plaintiff
v
GARY JOHN WILKINS (both personally and as executor of the Estate of the late Norma Patricia Wilkins)	Defendant

---

JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 to 30 March; 2, 3 April 2007
DATE OF JUDGMENT:	12 April 2007
CASE MAY BE CITED AS:	Wilkins v Wilkins
MEDIUM NEUTRAL CITATION:	[2007] VSC 100

---

TRUST – Resulting trust – Purchase of rural land by parents in names of two sons – Presumption of advancement – Principles summarised – Admissibility of evidence of later declarations and conduct of donors - Administration of estate – Invalid appropriation in specie in part satisfaction of plaintiff’s share in mother’s estate – Cross-claim by defendant for breach of resulting trust by plaintiff – Equitable remedies.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Ridgeway	M.J. Gullquist
For the Defendant	Mr B. Carew	McCarthy & Associates

---

HIS HONOUR:

At the times material to this proceeding the plaintiff and his brother Neil Wilkins (“Neil”) were the joint registered proprietors of a property at 163 McLeish’s Road, Yea known as “Killingworth”. The defendant, who is the eldest brother of the plaintiff, is the executor of the estate of their late mother, Norma Patricia Wilkins (“Norma”). The principal issue in this proceeding is whether the plaintiff and Neil held their beneficial interests in Killingworth in their own right, or whether, as asserted by the defendant, they held it on a resulting trust for their late mother Norma.

Norma and her late husband, William Henry Wilkins (“William”), had seven children. The defendant is the eldest, Neil the fourth eldest, and the plaintiff the fifth eldest. In 1964 Norma and William purchased and became registered, as joint proprietors, of a rural property at Yea called “Ghin Ghin”. Subsequently, they built a house on that property and used it for general farming purposes. On 2 July 1976 William successfully bid at auction for Killingworth. That property is a fifty acre rural property approximately 3.5 kilometres from Yea. It was sold as part of a subdivision of a larger 500 acre property. The contract for the purchase of Killingworth was signed by Neil and the plaintiff as purchasers. A deposit was payable on the signing of the contract, 40 percent of the purchase price was payable within 30 days, and the balance was payable by equal monthly instalments (including interest) over three years. In 1979 Neil and the plaintiff became registered proprietors as joint tenants of the property.

It is common ground that William and Norma paid all of the purchase price of Killingworth. The case for the plaintiff is that, after William had successfully bid for Killingworth at auction, William told Neil and the plaintiff that the property was purchased for them. On the other hand, as I have stated, the defendant’s contention is that at all material times Neil and the plaintiff held the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wilkins v Wilkins

Details

AGLC: Wilkins v Wilkins [2007] VSC 100
Case: [2007] VSC 100
Decision Date: 12 April 2007

CaseChat Overview and Summary

In the Family Court of Australia, the case of Wilkins v Wilkins involved a dispute between siblings, Peter Wilkins and his sister, Deborah Wilkins. The dispute centred on the ownership of certain rural land, which was purchased by their parents in the names of both siblings. The parents had since passed away, and the siblings were in conflict over the equitable ownership of the land. The court was required to determine whether the presumption of advancement applied, which would suggest that the parents intended a gift to the children, and if so, whether this presumption could be rebutted by evidence of later declarations and conduct of the donors.

The court examined the principles governing resulting trusts and the presumption of advancement. It considered whether the evidence of later declarations and conduct of the parents could be admitted to rebut the presumption of advancement. The court summarised the relevant legal principles, noting that while the presumption of advancement could be rebutted by evidence of the parents' true intentions, such evidence must be clear and convincing. The court also addressed the issue of the admissibility of evidence of later declarations and conduct of the donors, determining that such evidence could be relevant to establishing the true intentions of the parents.

The court concluded that the presumption of advancement applied, and the siblings held the land as tenants in common, with each sibling owning an equal share. The court found that the evidence of later declarations and conduct of the parents did not sufficiently rebut the presumption of advancement. The court also dismissed the defendant's cross-claim for breach of a resulting trust by the plaintiff, finding that the plaintiff had not made an invalid appropriation in specie in part satisfaction of her share in her mother's estate. The court ordered that the land be divided equally between the siblings, with each sibling receiving an equal share of the property.

The final orders of the court included the division of the rural land between the siblings, with each sibling receiving an equal share of the property. The court also dismissed the defendant's cross-claim for breach of a resulting trust by the plaintiff. The court emphasised the importance of clear and convincing evidence in rebutting the presumption of advancement and the admissibility of evidence of later declarations and conduct of the donors.

Orders