What Constitutes a Gift of a Chattel?

Sidney Nolan one of Australia’s most significant modernist artists, was already an established artist when he married his second wife, Cynthia, in 1948. Soon after the marriage, Sidney Nolan adopted Cynthia’s daughter, Mosca Gai Jinx Margaret Ellery Nolan (“Jinx”) who was then seven years of age. Throughout their marriage, Cynthia assisted Sidney Nolan with his work and in promoting his reputation.

In November 1976, Cynthia committed suicide leaving Jinx a life estate under an English will executed on 13 February 1976 and an Australian will executed on 22 April 1976. Sidney was surprised and distressed to receive no benefit under either of Cynthia’s wills. Shortly after Cynthia’s death, he began to reside at the home of Mary, who he married in February 1978. Sidney maintained a relationship with Jinx Nolan until he died in 1992.

The Claim

Jinx commenced proceedings in September 2001 claiming that she was entitled as the owner to the possession of three paintings by Sidney, “Hare in Trap”, “Royal Hotel” and “Italian Crucifix”, which she alleged were given by Sidney to Cynthia before her death in 1976.

Jinx submitted that she was not aware until September 2001 that there was evidence that the paintings were the property of Cynthia therefore, she was entitled to them as the sole beneficiary under her mother’s English and Australian wills.

The paintings were said to have been converted by Sidney shortly after Cynthia’s death and have never been delivered either to Jinx or the executors and trustees of Cynthia Nolan’s English or Australian estates, but passed to Sidney’s widow, Mary as executrix and sole beneficiary of his last will and estate.

Gift of a Chattel

At first instance the court stated the three elements of a valid inter vivos gift of a chattel (in the absence of a deed of gift, direction or declaration of trust) are:

(a) the intention to make a gift usually expressed by words;

(b) the intention on the part of the donee to accept the gift; and

(c) delivery.

Jinx claimed that each of the three paintings was given to Cynthia by Sydney Nolan before her death in 1976 and constituted assets of Cynthia’s estate. The Court accepted that Sidney Nolan gave paintings to his wife Cynthia during their marriage, which, upon her death, constituted assets of Cynthia’s English and Australian estates. Similarly, the three paintings were in the possession of Sidney Nolan until he died in 1992.

Mary Nolan acquired title to the three paintings according to Sidney’s will executed on 6 February 1978, under which she was the sole beneficiary. Artworks are chattels – personal, tangible, moveable items of property.

The Decision

In dismissing the claim, the court held that Jinx hadn’t established that Sidney Nolan had given the paintings to Cynthia. Although if this had been established the right of action of Cynthia’s trustees would have been barred after the expiration of a six-year period under the Limitation of Actions Act 1958 (“the Act”).

Similarly, the court dismissed the submission that as Sidney Nolan had completed all elements of a gift save for the transfer of legal title, therefore as constructive trustee no limitation applies under s.21 of the Act. Where a gift of chattels is complete and valid, there is no legitimate role for a constructive trust as the legal title to the chattels would have passed to the donee.

The Appeal

In dismissing Jinx’s appeal, the Supreme Court of Victoria Court of Appeal upheld that the claim was statute-barred and the approach to the legal elements of a gift, however, they held that it was arguable that if at first instance the court had considered all the evidence as a whole, (and not individually) it is open to conclude that on the balance of probabilities, Sidney Nolan had made an absolute gift of the three paintings to Cynthia Nolan, which amounted to a fundamental error to the conclusion that Jinx had not established her case. 

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