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Growing Stronger Podcast Ep #24: The Million Dollar Gift

Posted on 10th December 2021
Catherine Henry Lawyers
Catherine Henry Lawyers

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In episode 24 of our podcast, Growing Stronger, Tanya Chapman discusses a case involving financial elder abuse. You won’t see or hear these words to describe the conduct, instead, the legal terms unconscionable conduct and undue influence are used. You might not know the terms, but you may recognise the conduct.

This case involves a dying mother who, shortly before her death, gave her daughter $2.2m. The daughter was her mother’s principal carer, her mother depended on her and trusted her, and it was the daughter who arranged the transfer of the money. These circumstances were enough to raise suspicions that maybe the daughter had influenced her mother to make the gift.

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Case: Olsen v Mentink [2019] NSWSC 1299

Note

  1. This is a brief summary of the topic and the case law covered in the episode and is not a full transcript of the recording
  2. The case discussed in the episode is a NSW case, so what we’re discussing will be based on the law in NSW and is not intended to be taken to be applied Australia-wide.
  3. While this podcast is aimed to be informative, it is not intended to be a substitute for legal advice. For any matter we discuss, we summarise, skip over parts that may be too technical and only generalise. You should still see a solicitor for complete advice that relates directly to your particular situation.

Warning
This topic may be considered to be disturbing. Listener discretion is advised.

SUMMARY

John Olsen and Katharine Howard-Olsen married in 1989. They both had children from previous relationships.

John had three children: Jane, Tim and Louise.

Katharine had one daughter: Karen Mentink. She was 28 years old when her mother married John.

John and Katharine were married for 27 years up until Katharine’s death in December 2016.

Throughout their relationship, John and Katharine pooled their resources and shared their finances.

John and Katharine made several wills over the years. Generally, they left everything to each other – if John died everything would go to Katharine and if Katharine died John would get everything.

Then on the death of both of them, the estate would be divided 4 ways

  • One quarter to Katharine’s daughter Karen
  • One quarter to John’s son Tim
  • One quarter to John’s daughter Louise
  • John’s other daughter Jane had died and her one-quarter share was to go to her children.

They also intended that Karen would get the Hurlingham property and to make it up to John’s children by them receiving paintings.

However, two months before her death, Katherine and her daughter went to a bank where Katherine withdrew $2.2m and gave it to her daughter.

So, was the $2.2m a valid gift? Did Katherine have capacity to make the gift at the time or was undue influence and unconscionable conduct involved?

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