Read the full judgment text of CACV 000238/1997 on BabelCite. This Court of Appeal judgment was delivered on 14 May 1999 before Mortimer VP, Godfrey JA, Rogers JA.
Civil appeal – beneficial ownership of fixed deposit accounts – bank accounts in son's name funded by father – presumption of advancement – admissibility of evidence of intention – subsequent declarations – nature of gift of fluctuating and defeasible asset – the father Mentor Lee opened three fixed deposit accounts (two in US dollars, one in Canadian dollars) with Overseas Trust Bank Limited between November 1989 and February 1990 in the name of his son John Lee See Ching, funding them entirely from his own resources and retaining control of the accounts and all bank documents until his death in August 1991 – whether the father intended the accounts as gifts to the son or whether the balances formed part of his estate – the trial judge (Pang J) found against the son on the basis that the absence of any reference to the deposits in the father's meticulous diaries, coupled with the absence of any acknowledgement by the son, negatived any intention to gift – the son appealed – whether the father's intention at the time of the deposits was that they should belong to the son beneficially – whether, in the absence of direct evidence, the presumption of advancement was rebutted – held, following Murless v Franklin (1 Swanston 18) and Shephard v Cartwright [1955] AC 431, that only evidence of acts or declarations of the donor at or immediately after the time of the transaction is admissible to prove intention, and subsequent acts or declarations are admissible only against the party making them – held that evidence relating to other property or subsequent transactions is inadmissible to qualify the effect of the transactions in question – held that the trial judge's reliance on the father's diaries, the account schedules, the letter of 31 December 1976 and the absence of any acknowledgement was based on inadmissible evidence or on insufficiently supported inferences about the father's character and habits – held that the schedule of diary entries produced on appeal demonstrated that the father did not record all gifts without exception, so that the absence of an entry could not support a positive finding of no gift – held that the letter of 8 May 1991 was not contemporaneous and was at most admissible as a declaration against the father's interest, and that it was equivocal – held that there was no relevant and admissible evidence upon which the trial judge could properly have concluded that the father did not intend the deposits as gifts to the son – held, applying the analysis of Megarry J in In re Figgis [1969] 1 Ch 123 at 149, that the transaction is properly characterised as an immediate gift to the son of a fluctuating and defeasible asset consisting of the chose in action for the time being constituting the balance in each account, notwithstanding that the father retained control and used the funds during his lifetime – presumption of advancement therefore applied and was not rebutted – appeal allowed – judgment below reversed – costs of the son both in the Court of Appeal and below to be taxed (if not agreed) as between party and party and paid by the administrators – no order made in respect of the administrators' costs, subject to any Beddoe order they may have obtained authorising them to prosecute the proceedings at the expense of the father's estate (In re Beddoe [1893] 1 Ch 547).
Legal issues: Admissibility of evidence of donor's intention regarding deposits in donee's name · Whether presumption of advancement was rebutted on admissible evidence · Validity of a gift of a fluctuating and defeasible bank balance
Outcome: Appeal allowed. The Court of Appeal held that the presumption of advancement was not rebutted on the admissible evidence, reversed the judgment below, and held that the balances in the three fixed deposit accounts were gifts to the son of the kind analysed in In re Figgis.
Cited by 1 case