Walton v Walton

Lynda's case and Peter's and Helen's response

1. Lynda brings these proceedings as a representative of Lillian's estate. Peter was appointed executor under Lillian's will but, evidently because of the small size of her estate, has not applied for probate.
2. Lynda asserts that the execution of the Deed by Lillian was brought about by the exertion of undue influence on the part of Peter and Helen.
3. The particulars of undue influence given in the Further Amended Statement of Claim, and as pressed in final submissions, are as follows: "(a) The deceased was 83 years of age and in poor health. (b) The deceased was…dependant on the defendants for her care and welfare. (c) The deceased held the belief that the moneys [sic] she had lent to the defendants had been spent or lost. (d) The deceased held the belief that if she did not release the defendants from their obligation to repay the loan the defendants would lose their home. (e) The deceased's beliefs particularised in sub-paragraphs c and d above were induced by representations made to the deceased by either or both of the defendants."
4. Although the Further Amended Statement of Claim does not make this allegation in its terms, Mr Anderson informed me at the outset of the hearing that Lynda's case was that the alleged representations were false. Ms Hill, who appeared for Peter and Helen, informed me that Peter and Helen understood this to be the case brought against them and were ready to meet it.
5. In response to a request for further and better particulars, Lynda's solicitors stated: "The plaintiff alleges cumulatively and alternatively that the execution of the deed by the deceased…was the result of influence expressly used by the defendants over the deceased… The influence referred to…above is constituted by the representations alleged in paragraph 17(e) of the further amended statement of claim. The substance of the representations made by either or both of the defendants was that if the defendants were obliged to repay the moneys [sic] lent by the deceased the defendants would lose their home. The defendants [sic: "plaintiffs"] are unaware of the form of the representations or the circumstances in which they were made. The plaintiff will rely upon evidence of the understanding of the deceased at the time she executed the deed."
6. The defendants' response, in their Defence, was, relevantly: "At no time whilst the deceased resided with the defendants did the defendants exercise dominion over the deceased, or otherwise influence the deceased's decision-making regarding financial matters, or the deceased's living arrangements, which were decided by the deceased herself. In particular, the decision of the deceased to enter into the Deed dated 25 January 2012 was made of her own free-will and without the influence of the defendants. The defendants deny that the execution of the Deed by the deceased was brought about by the exertion of undue influence on the part of the defendants. The defendants say that the deceased held the belief that the Plaintiff would attempt to make difficulties for the defendants once she (the deceased) had passed away including requiring the defendants to repay the sum of $300,000.00 to her (the deceased's) estate, that the deceased held the belief that such a requirement would cause the defendants financial hardship, and that the deceased wished to ensure that this did not occur. As such, the deceased's beliefs were induced by the behaviour of the Plaintiff."

Principles

1. A transaction, such as the Deed, may be set aside in equity if it is shown to have been procured by undue influence: that is, the unconscientious influence of one person over another.
2. The principles are summarised in P W Young, C Croft and M L Smith, On Equity, (2009, Lawbook Co.) at [5.330] to [5.360] as follows: "Relief may…be granted where a person transfers property in circumstances where they were subject to the improper dominion or 'psychological ascendency' of another so that their consent to the transfer was not independent and voluntary. In such circumstances, the transfer, although valid at law, may be set aside in equity for undue influence. The aim of the doctrine of undue influence is to prevent the improper or unconscientious ('undue') use of the influence one person has over another, not the use of influence per se. It is directed towards transfers of property which cannot be explained on the grounds of 'friendship, charity or ordinary motives' in which people ordinarily act. … The relevant enquiry in undue influence is not whether the transferor intended to transfer property, but how that intention was produced. Accordingly, a claim of undue influence will not be defeated simply by establishing that the transferor consented to or understood the transaction. … Undue influence may be established by adducing evidence that the transferor's consent was in fact procured by the undue influence of another ('actual undue influence'). Alternatively, an examination of the relationship between the relevant parties and the value of the property involved may give rise to a presumption that the transfer was procured by undue influence (known as 'presumed undue influence'). If that presumption is not rebutted, undue influence will be established without the need to demonstrate any actual undue influence." [citations omitted]
3. There are some relationships (for example, a parent and a child) in which, without more, undue influence is presumed. That is not this case. Although a "parent is presumed to exercise influence over [a] child; there is no presumption in the opposite direction": Brown v The NSW Trustee & Guardian [2011] NSWSC 1203 at [46] per Brereton J.
4. This case is concerned with "presumed undue influence" and "actual undue influence" of the kind referred to in the passage I have set out at [29] above.
5. As to "presumed undue influence" in this sense, in Winefield v Clarke [2008] NSWSC 882 Barrett J said at [27]: "Presumed undue influence may arise from the existence of a relationship where one person has assumed a position of ascendancy or influence over the other person or the other person has reposed trust and confidence in the former, and the former has used that relationship to achieve a transaction in which the first person benefits. …In the case of presumed undue influence the onus will rest on the ascendant or trusted party to rebut the presumption and prove that the transaction was voluntary and a result of a free exercise of will or a well understood decision-making process: Johnson v Buttress (1936) 56 CLR 113."
6. So far as concerns rebutting a presumption of undue influence, Brereton J said in Tulloch (deceased) v Braybon (No 2) [2010] NSWSC 650 at [39] and [40]: "A presumption of undue influence may be rebutted by showing that the disposition was the independent, well-understood act of a person exercising free judgment [Johnson v Buttress; Zamet v Hyman [1961] 1 WLR 1442; 3 All ER 933 (CA)]. … This requires establishing both that the disponor knew and understood what he or she was doing, and that he or she was acting independently of the influence of the dominant party [Watkins v Combes (1922) 30 CLR 180; Quek v Beggs; Whereat v Duff, 168, 169]."
7. Brereton J went on to discuss the nature of a "special relationship of influence" at [51]: "In my opinion, …more than mere confidence and reciprocal influence is required to establish a 'special relationship of influence' from the existence of which undue influence will be presumed unless rebutted; for a relationship to be brought within the doctrine, it must go beyond one of mere confidence and influence, to one involving dominion or ascendancy by one over the will of the other, and correlatively dependence and subjection on the part of the other. …But more is required than the 'influence' that any person might have on another by making an recommendation or giving advice. What is required, as a minimum, is that one have some element of authority or superiority (which may be moral or practical as distinct from legal) over the other."

Characterisation of Lynda's claims

1. As I have set out above at [24], Lynda has particularised her claim of undue influence by reference to, first, Lillian's alleged dependency on Peter and Helen, and, second, by reference to the representations said to have induced Lillian to believe that the money she had advanced to Peter had been lost, and that Peter and Helen would lose their home unless Peter was released from his obligation to repay those advances.
2. As I understood Mr Anderson's submissions, the first aspect of Lynda's claim is one of "presumed undue influence" of the kind I have described and thus seeks to establish not only that Lillian was dependant on Peter and Helen, but that Peter and Helen had assumed a position of ascendency, influence or dominion over Lillian such that her consent to the release contained in the Deed was not truly independent or voluntary. If that circumstance is made out then, as Mr Anderson submitted, and as the authorities I have set out make clear, the onus would rest on Peter and Helen to rebut the presumption of undue influence by showing that Lillian's execution of the Deed was voluntary and the result of the free exercise by Lillian of her will, uninfluenced by them.
3. As to the second aspect of Lynda's claim, concerning the alleged representations, I understood Lynda to be asserting actual undue influence by Peter and Helen over Lillian, such actual undue influence being constituted by the alleged representations.
4. In view of the conclusions to which I have come, I will deal with the second aspect first.
5. Before doing so, I will set out further relevant background.

Lynda's relationship with Lillian

1. The evidence revealed that, at least from the time Lillian commenced to live with and be cared for by Peter and Helen in 2003, she had a very difficult relationship with Lynda.
2. Lynda did not dispute that her relationship with Lillian was fraught.
3. In her affidavit she said: "I was increasingly upset with the care Mum received and more in particular in regards to her state of mind. I was not coping personally with Mum's overall situation. All my conversations with mum were getting excessively emotional, as every time I tried to address the issues with her treatment she would change the subject or deny any problems she was experiencing."
4. In cross-examination Lynda gave this evidence about that passage: Q. "By excessively emotional do you mean that you were raising your voice? A. Probably, yes. Q. And getting angry at the state of affairs? A. Yes. Q. You also say that…you saw fear in your mother's eyes? A. Yes. Q. Do you think that it was in fact your interactions with your mother that were causing her fear? A. Yes. Q. That she was, in fact, afraid of you? A. Yes, because of things that had been told to her about me. Q. Did you think it was because you were making harassing phone calls, that she was getting distressed and afraid? A. Yes."
5. On 15 June 2011 Lynda wrote an email to her brother, Phillip, stating: "Mum is and has been for a really long time sickened at the sight of me."
6. Lynda gave this evidence concerning that email: Q. "As of June 2011 your mother showed signs of distinct distress and discomfort at seeing you? A. Yes. Q. It was at this time that you were caught making many phone calls to your mother whilst she was living at Peter's house? A. Because she's my mother, yes. Q. They were, would you say, emotional phone calls? A. Yes. Q. Were you angry? A. Upset, not angry. Q. It was these phone calls and what you were saying to your mother that was causing her to, in your own words, be sickened at the sight of you? A. No, it wasn't the phone calls. They certainly exacerbated it, but it was not the phone calls."
7. The evidence also strongly suggests that Lillian's motivation in executing the Deed was her apprehension that, if she did not, and if Peter remained liable to repay her estate the $300,000 following her death, Lynda would cause the estate to seek to recover the $300,000 and thereby cause Peter and Helen financial hardship.
8. In that regard, Peter gave unchallenged evidence that Lillian said to him words to the following effect: "I believe Lynda is up to something no good, and that could mean Helen and you might get put out of your house."
9. In the circumstances I describe below, Mr Paul Georgiadis, a solicitor, called on Lillian at 47 Anderson Avenue on 14 October 2011 to discuss the possibility of executing the Deed. Mr Georgiadis gave unchallenged evidence that Lillian said to him: "I am concerned that my daughter Lynda will make trouble after I am gone about this money. Lynda is my youngest daughter. She is divorced and has 4 children of her own. She has some mental problems. I want to be certain that she can't make trouble for Peter and Helen after I am gone."
10. Lynda called her sister, Beth, as a witness. In her affidavit Beth said that on a number of occasions, Lillian said to her: "Helen and Peter have lost everything and Helen is working to pay the mortgage. I am worried they will lose the home. If Lynda goes ahead and contests my will, Peter and Helen will be destitute".
11. There is objective evidence of Lillian's concern about Lynda's conduct in statements made about Lillian by health professionals.
12. For example, on 21 June 2011, whilst Lillian was a patient at Braeside Hospital, Lillian was seen by a psychologist. The hospital notes contain an entry by a psychologist to whom Lillian was referred "with concern around anxiety [about] daughter". The entry included: "…[Lillian] was cooperative, alert and answered all questions asked of her…[Lillian] indicated [increasing] anxiety [about] her daughter…who wants [Lillian] to live with her but [Lillian] is not agreeable to this - this is taking [increasing] [amount] of time in worry and feels her blood pressure is high [because] of it. …She reported 8 phone calls from her daughter started [about] 2 [months] ago (5 times) [and] this has been a source of stress for her. She feels her worry is uncontrolled [about] [Lynda]."
13. An entry on 23 June 2011 similarly reports: "[Lillian] reported being able to easily stop thoughts around daughter. She remains concerned [about] this but has been able to rationalise that she can't do anything currently [about] this."

The circumstances in which the Deed was prepared and executed

1. The Deed was prepared by Mr Georgiadis. Mr Georgiadis had been the solicitor for Peter and Helen for approximately 25 years and acted for Peter in relation to the proposed development at Mt Pritchard.
2. In his affidavit, Mr Georgiadis gave this evidence concerning the circumstances in which Lillian executed the Deed: "I…arranged to visit Lillian Walton at 47 Anderson Avenue, Mt Pritchard which occurred on 14 October 2011. Peter and Helen Walton were at the home as was Peter's sister, Beth. Lillian Walton was seated in a chair in the lounge room at the front of the house. I sat down across from Lillian and talked to her in the absence of the others who were in the back of the house. I started the conversation by saying, 'Do you know why I have come to see you' or words to that effect and she said, 'Yes, it's about the money' or words to that effect. During the course of our conversation Lillian Walton said to me 'I accept that the money is gone. I do not want anything done about it. Beth and Helen look after me in tandem and they are terrific. Helen has been very good to me. I do not want her to lose her home over the issue.' … I asked Lillian, 'In the light of the fact that you want to cancel the debt owed by Peter, do you want to amend your Will so that Peter does not share in whatever is left when you are gone?' and she said 'No. I do not want Peter's name to be taken out'. I then said to Lillian words to the following effect, 'I will prepare a document to cancel the debt but it will be necessary to have some medical evidence to say you haven't lost your marbles' to which Lillian chuckled and said 'Okay'. I also said, 'I will need to get a local solicitor to give you some independent advice'. I have no doubt that Lillian Walton knew exactly what she wanted to achieve. She exhibited clear thinking and perceptiveness during our conversation. … Given what Lillian Walton had told me about her concerns as to what her daughter Lynda might do, I took a number of precautions in respect of the execution of that document."
3. The "precautions" to which Mr Georgiadis referred included referring her to an independent solicitor, Mr Peter Mitchell. Mr Georgiadis also suggested to Lillian that she attend on her treating general practitioner, as well as a consultant physician and geriatrician.
4. Mr Mitchell swore an affidavit in which he said he visited Lillian at 47 Anderson Avenue. He said: "I do not have a specific recollection of the meeting I had with Mrs Walton, nor did I make any notes in respect of the meeting. In fact, I did not open a file in respect of the matter. However, it is my practice in explaining and witnessing documents to take certain steps to satisfy myself about the capacity of the person I am advising."
5. In a subsequent affidavit, Mr Mitchell described those "certain steps" as follows: "a) I would introduce myself to the person with whom I was meeting and see if they introduce themselves to me; b) I would ask them if they knew the reason for my visit; c) I would ask them if they were aware in general terms of the contents of the document which I was there to explain; d) I would read the document to them; e) I would explain the nature and effect of the document to them in non-technical terms; f) I would ask the person questions about other persons (such as family members) or facts set out in the document to test their understanding; g) I would give the person the opportunity to ask any questions they had about the transaction. If I am dissatisfied in relation to any of these matters I would not proceed to the signing of the document."
6. On 29 November 2011 Mr Mitchell wrote a letter to Mr Georgiadis stating: "We refer to the above matter and to our attendance upon Mrs Walton. The writer attended upon Mrs Walton who was well aware of the writers [sic] reason for attending the premises and the writer then proceeded to advise her in respect of the Deed she was about to execute. Mrs Walton advised the writer that she was aware as to her legal position and rights in respect of the contents of the Deed and was prepared to execute same."
7. The evidence of Mr Georgiadis and Mr Mitchell was received without objection. Neither was cross-examined.

Lillian's physical and mental condition at the time she executed the Deed

1. It is common ground that, at the time Lillian executed the Deed, she suffered a number of physical ailments. Some years previously she had had 80 per cent of her bowel removed. She suffered from diabetes. She was on anti-coagulant medication, and had angina and hypertension. She was often unable to get to the dining table for meals. She had some incontinence problems. She required assistance showering. She had been declared technically blind (although she could still read). She had kidney failure and central tremors with Parkinson's disease.
2. Peter agreed that Lillian was dependant on him and Helen for accommodation.
3. However, Lillian was, at the time she executed the Deed, mentally alert.
4. Thus, Lillian's general practitioner, Dr Upkar Goyal, swore an affidavit in the following terms: "For a number of years…prior to her death I was the GP for Lillian Emily Walton. In that role I would most often visit her where she lived, in Mount Pritchard. One of the premises from which I practice [sic] is also in Mount Pritchard. As Mrs Walton's GP my role involved observing her general health and co-ordinating and referring her for specialist treatment as required. For example, Mrs Walton saw a renal specialist (Dr Cleland in Liverpool), a cardiologist (Dr Shafransky in Wetherill Park), a Neurologist (Dr McDougall at Liverpool Hospital) and Dr Sarkis, in relation to Macular Degeneration. In the last two years of Mrs Walton's life I estimate that I visited her at home every 1-2 months… … In the course of my treatment of Lillian Walton I communicated with her alone on many occasions, and found her to be an intelligent and independently minded person, able to grasp the nature of her various conditions, and the implications of them."
5. On 25 October 2011, Dr Goyal sent a letter to Mr Georgiadis which was in the following terms: "Mrs Lillian Walton has been a patient of mine since 2009. I visited Lillian today, 25 October, 2011. She is 83 years of age, and suffers from Chronic Renal Disease, Diabetes, Parkinson's Disease, and is on a number of medications. As her General Practitioner, I believe she is of sound mind, and able to make decisions with full awareness of the consequences."
6. On 24 October 2011, Dr Mariam Joseph, a Geriatrician and Consultant Physician, provided a letter to Mr Georgiadis which was in the following terms: "This is to inform you that Mrs Walton has many medical problems but she has no dementia and has a very good insight into her problems. She has sound mind and her memory is excellent and does make a [sic] good judgment."
7. The evidence from Mr Georgiadis, Mr Mitchell, Dr Goyal and Dr Joseph was adduced by Peter and Helen and unchallenged by Lynda.
8. Lynda adduced no medical evidence concerning Lillian's condition at the time she executed the Deed.
9. I turn now to Lynda's case of undue influence commencing with her claim of actual undue influence arising from the alleged misrepresentations.

Representation that the $300,000 Lillian lent to Peter had been spent or lost

1. I am satisfied that Peter did make a representation to this effect to Lillian. I am not, however, satisfied that the representation was false.
2. In cross-examination, Peter agreed that he had told Lillian that he "had no money".
3. Later, Peter said "I'm not sure I used those words" but then gave the following evidence in answer to questions from me: Q. "I'm just trying to get you to tell me what your recollection is and when you think you said whatever you said? A. Quoting exactly I've told mum I've got no money, mum - look, I did - I did tell mum, if you like, I told her that I'd used all of mine, I'd consumed all of our resources. I suppose that's the same as I had no money. Q. When do you think you said that to her? A. On the sale back in 2010, October 2010, mum asked me how would we - how did we go with the sale. We had a discussion then. From the discussion I had very little money. Q. This is the sale of the development site, is it? A. The sale of the development- Q. 45 Anderson? A. 45 Anderson and in that discussion I made it very clear that there was very little left over after the sale but I don't remember using those exact words."
4. There is evidence that Lillian did believe that the monies she had advanced to Peter had been lost.
5. Thus, as I have set out above, she said to Mr Georgiadis on 14 October 2011 that she accepted that the "money is gone" and said to Beth that "Helen and Peter have lost everything" (see [54] and [49] above).
6. Further, Mr Georgiadis gave evidence that, towards the end of September or early October 2011, prior to preparation of the Deed, Peter had said to him that "there may be problems down the track because Mum's money was spent or lost".
7. The Deed itself recited that the funds advanced by Lillian "have been dissipated or used by Peter" (at recital (n)).
8. Mr Anderson submitted that it was false of Peter to tell Lillian that the money she had advanced had been "spent or lost" because that money had, first, been used by Peter to pay Mr Emmett $100,000 on 3 December 2003 (see [14] above) and, second, by Helen to acquire Mr Emmett's interest in 47 Anderson Avenue (see [16] above).
9. As to the payment made on 3 December 2003 to Mr Emmett, it is true that this payment followed only days after the 28 November 2003 $100,000 receipt (see [14] above). There is, however, no direct evidence of when that $100,000 was paid by Lillian to Peter. If it was paid on or about 28 November 2003, it may be that an inference arises that it was used to fund Peter's payment to Mr Emmett. But I fail to see how it follows from this that it would be false to say that that part of the money had been "spent or lost". For what it was worth, Peter had acquired Mr Emmett's interest in the Trust. However, there is no evidence before me that, as at the date of the Deed, that interest was of any value.
10. As to the acquisition by Helen of Mr Emmett's interest in 47 Anderson Avenue, the evidence is sparse indeed. Mr Anderson pointed to two payments of $52,600 made from Peter's credit union account to Mr Emmett on 29 June 2004. But the transfer of Mr Emmett's interest in 47 Anderson Avenue to Helen took place over two years later, on 14 July 2006 (see [16] above). My attention was not directed to any evidence showing any link between the two 29 June 2004 payments and the 14 July 2006 transfer. Mr Anderson directed no questions to either Peter or Helen about this subject in cross-examination.
11. In opening written submissions, Mr Anderson submitted that, following the sale of 45 Anderson Avenue (see [17] above), the Trust received $129,425.85, of which $120,000 was deposited to "the defendants' IMB mortgage account" on 28 April 2011. However, this matter was not taken up in Mr Anderson's cross-examination of either Peter or Helen, and not mentioned in Mr Anderson's final submissions. Further, as Ms Hill pointed out, there is no evidence of the position as at the time of execution of the Deed.
12. Mr Anderson also pointed to the fact that, at the date of the Deed, something in the order of $333,000 stood to the credit of Peter's superannuation account with his former employer, Qantas. Mr Anderson submitted that the alleged availability of these funds rendered false the alleged representations. I do not accept that submission for a number of reasons.
13. First, Peter gave evidence, which I accept, that his state of mind was (and is) that, as he has not yet retired, he is not entitled to access that superannuation. Mr Anderson submitted that I should not accept that evidence. However, having carefully observed Peter when he gave this evidence, I am not satisfied that he was not telling the truth. In any event, even if it is a fact that Peter could have, prior to execution of the Deed, accessed his superannuation, and even if Peter believed that was so, it would not render false his statement to Lillian that the money she had lent him had been "spent or lost". There is no suggestion that any part of the money advanced by Lillian to Peter found its way into Peter's superannuation fund.
14. In those circumstances, I am not persuaded that it was false for Peter to tell Lillian that the money she had advanced had been "spent or lost".

Representation that if Lillian did not release Peter from his obligation to repay the $300,000, Peter and Helen would lose their home

1. I am not satisfied that either Peter or Helen made this representation.
2. There is no direct evidence that either Peter or Helen told Lillian that they would "lose their home" if Lillian did not release Peter from his obligation to repay.
3. As I have set out above at [54], Mr Georgiadis gave evidence that Lillian said to him, on 14 October 2011: "Helen has been very good to me. I do not want her to lose her home over the issue."
4. Further, Beth gave evidence that on the day that Lillian executed the Deed she said to Beth: "I've done it. There was nothing I could do. I don't want Helen living on the street."
5. That evidence certainly suggests that Lillian was concerned that, but for her execution of the Deed, there was some prospect of Peter and Helen losing their home. It does not necessarily follow, however, that Lillian had this concern because of anything Peter or Helen said to her.
6. On the contrary, the evidence I have set out above at [47] to [49] of the statements made by Lillian to Peter, Beth and Mr Georgiadis suggests that Lillian's concern was borne of her apprehension that, unless she released Peter from his obligation to repay the $300,000, Lynda would "make trouble for Peter and Helen after I am gone".
7. Nothing that transpired during cross-examination of Peter or Helen causes me to come to any different conclusion. Peter denied telling Lillian that he feared the home would be lost absent a release of his obligation to Lillian. Helen was not asked any questions at all on the topic.
8. Thus, in cross-examination, Peter gave this evidence: Q. "Did you ever tell your mother that in the event that you had to repay the debt to her or to her estate according to the terms of the original agreement, that you would be likely to lose your house? A. No. Q. Are you aware whether your wife told that to your mother? A. That was part of the discussion at the time, but my mother was very much engaged in what was happening for that ten years. She could make her own assessment and at times that was - that subject was raised. Q. You say that you are aware that your wife told your mother words to that effect? A. Mum might even have initiated it. It's more likely that she did. Helen would have concurred because that possibility existed."
9. A short time later, Peter denied telling his mother that he and Helen "might be living on the street" if the "debt wasn't released" but then gave this evidence in response to questions from me: Q. "The question is or the question that Mr Anderson asked you was are you aware whether your wife told your mother that you two might end up on the street, and to break that down, did you hear your wife say it, did your wife tell you she said it, do you have any other actual knowledge of whether she said it or not? A. Look, my wife may have said it. Q. No, do you know or not? A. Look, I think that could have been said but the time when it was said, sir."
10. However, Mr Anderson did not address any questions to Helen on this subject during his cross-examination of her.
11. In those circumstances, I am not persuaded that either Peter or Helen made the representation alleged.

Conclusions concerning the alleged misrepresentations

1. For those reasons my conclusions as to the alleged representations are as follows.
2. First, although Peter said something to Lillian to the effect that the money she had advanced to him had been "spent or lost", it was not false of him to say. His statement was therefore not a misrepresentation.
3. Second, I am not satisfied that either Peter or Helen said anything to Lillian to the effect that if she did not release Peter from his obligation to repay the $300,000, they would lose their home.
4. Accordingly, Lynda's case based on these alleged representations fails.

Presumed undue influence?

1. As the authorities I have set out at [32] to [34] make clear, in order to establish a case of presumed undue influence, Lynda must establish that Peter and Helen had assumed a position of "ascendency or influence" over Lillian such as would give Peter and Helen "some element of authority or superiority" or "dominion or ascendency" over Lillian.
2. It is common ground that, at the time she executed the Deed, Lillian was in poor physical health and was, physically, dependant on Peter and Helen.
3. It is also common ground that, at this time, Lillian reposed trust and confidence in Peter and Helen.
4. Lynda asserted, and appears truly to believe, that Lillian was treated cruelly whilst living with Peter and Helen.
5. In cross-examination Lynda was taken to an email that she sent Helen on 24 August 2011 in which she said: "I am glad Mum has you and I suspect your life is a lot more pleasant with her around. Her health is being poorly managed but I believe that is how she prefers it so I'm fine with that. The problem for me is that Peter can not [sic] cope in any situation that he does not have complete control. I feel he interferes completely with my relationship with mum, so until things change I will not be happy with where mum is."
6. Lynda gave this evidence in cross-examination about that email: MS HILL Q. "You say in that email that you weren't happy with your mother living at Peter's house because you felt Peter interfered with your relationship with her? A. Yes. Q. You would agree that's a personal reason for why you were not happy with the situation, which has nothing to do with the care she was receiving? A. No. Q. You have said in that email that you weren't happy with your mother living at Peter's house because you felt Peter interfered with your relationship with your mother. Do you agree that that is reasonable [sic: personal] to yourself? A. That is a reason, yes. Q. It is a personal reason, it is not a reason related to your mother's care? A. My mother's care. I really am not qualified to have too much opinion, by the time this was written, as I was not allowed near her very much. Q. But do you agree you had personal reasons why you objected to your mother being at Peter's house and this was one of them? A. Yes, because she was treated cruelly. Q. You say she was treated cruelly? A. Yes. Q. What is it that you say was cruel? A. Peter's yelling at her, screaming at her when she couldn't stand up off the toilet. Q. That never happened, Lynda, did it? A. Yes. HIS HONOUR Q. How do you know? A. Because my nephew told me. He ended up picking her up and carrying her to the chair because she couldn't stand up. … MS HILL Q. You gave evidence before of the cruel treatment of your brother yelling at your mother? A. Yes. Q. You didn't think to include that in your affidavit? A. No, because I wasn't there at the time and I don't think that this is about my brother or me. My brother definitely abused my mother and there is very little I can do about that, but I can do something about my mother's wishes or I intend to."
7. It may be that Lynda truly held the beliefs to which she deposed. However, I find Lynda's assertion that Peter was treating their mother "cruelly" impossible to reconcile with the objective evidence before me.
8. Leaving aside the evidence that Peter and Helen gave as to the care for Lillian in the 11 years that Lillian lived with them, there is a large amount of objective evidence to suggest that neither Peter nor Helen exercised dominion or ascendency over Lillian in any way that is relevant to her execution of the Deed.
9. First, as I have set out above at [54], Lillian told Mr Georgiadis that Beth and Helen looked after her "in tandem" and were "terrific", and that "Helen has been very good to me".
10. Mr Georgiadis gave unchallenged evidence that he had: "…no doubt that Lillian Walton knew exactly what she wanted to achieve. She exhibited clear thinking and perceptiveness during our conversation."
11. Further, as I have set out above at [55], Mr Georgiadis referred Lillian to an independent solicitor, Mr Mitchell, who gave unchallenged evidence as to having followed his usual practice of explaining the nature and effect of documents to be signed and of not proceeding unless satisfied of the relevant person's understanding of the document to be signed.
12. Further, Peter and Helen adduced evidence from a number of persons who saw Lillian during the period that she was living with Peter and Helen and who attested to Lillian's wellbeing and satisfaction with the care she was receiving from Peter and Helen.
13. For example, Ms Merle Catto, who had known Lillian since "before either of us were married" said that in August 2007 Lillian had said to her: "I am very happy living with Peter and Helen. I love Helen; she does so much for me."
14. Similarly, the Reverend Bruce Dingwall, a Minister at the Menai Anglican Church, gave evidence that "Lillian was sharp mentally right up until the last time we saw her in hospital not long before her death" and that Lillian had said to him: "Bruce I am so blessed to be living with Peter and Helen - Helen is more like a daughter to me than a daughter-in-law".
15. The Reverend Dingwall continued: "In the later days she also talked about how pleased she was that Beth (one of her daughters) had also come to live with them. I did not get the impression at any time that she was unduly influenced or manipulated or that what she said was prompted by fear or coercion and never did Lillian give even a hint that she was being mistreated. We did not observe anything that made us even consider that Lillian was not happy and contented - quite the reverse."
16. Nine other witnesses gave evidence to the same effect. The evidence of all these witness was received without objection. None were cross-examined.
17. The observations of medical professionals also points strongly to the conclusion that Peter and Helen were not exercising "dominion or ascendancy" over Lillian's will.
18. During an admission in April 2012 to Liverpool Hospital, a social worker recorded in Lillian's Clinical Progress Notes: "Met with [Lillian's] daughter [Lynda] for a family conference…[Lillian's] daughter disclosed that she believes [Lillian] is being abused by her family members. She [has] requested a psychology [sic] assessment. [Lynda] reports that she feels that this is a case of Elder Abuse and wants the Hospital to assess the situation. [Social worker] agreed to follow up with [Lillian], but explained to [Lynda] that [Lillian] had disclosed no abuse to any staff. [Social worker] met with [Lillian's] daughter Beth and daughter-in-law. [Lillian] appeared very distressed, crying and shaking. [Lillian] states that [Lynda] is 'mentally ill' and creates 'conflict that upsets her'. [Lillian] denies abuse and states that '[Lynda] has it all in her head'. …[Lillian] reports feeling very anxious after being visited by [Lynda]."
19. Liverpool Hospital Clinical Progress Notes for 30 April 2012 record: "[Lillian] has been living with Peter for the last 9 [years] and very happy there. Peter and his wife do not interfere with her life. [Lynda] becomes upset if [Lillian] does not do what she wants… [Lillian] discussed family conflict in detail. She explained that [Lynda] becomes upset if she does not do what [Lynda] wants/thinks is right. [Lillian] reports that she has been living with her son and daughter-in-law for [approximately] 9 years and is very comfortable and happy there. She denies abuse, stating that her son and wife do not interfere in her life and she has the autonomy to make her own decisions. She states that there is no physical, emotional or financial abuse and that her son, daughter Beth and daughter-in-law Helen care for all her needs. She reports feeling 'safe' and 'happy' in their care."
20. I see no reason to doubt the accuracy of these notes, nor of the reliability of Lillian's reported assessment of her own position.
21. This evidence satisfies me, on the probabilities, that, contrary to Lynda's apprehension, Lillian was well cared for by Peter and Helen, that she was not subject to physical, emotional or financial abuse and was, as she stated at Liverpool Hospital, safe and happy in their care.
22. In those circumstances, I am not satisfied that Lynda has established that there was a relationship between Peter and Helen on the one hand and Lillian on the other such as would give rise to a presumption of undue influence.
23. In any event, I am satisfied that Lillian understood, quite clearly, the effect of her entry into the Deed and that the Deed was the "independent, well understood act of a person exercising free judgment" (to adopt the language of the authorities to which I have referred at [32] to [34] above).
24. I am satisfied that Lillian's entry into the Deed was her own idea and born of a desire to "be certain that [Lynda] can't make trouble for Peter and Helen after I am gone" (to adopt the words she used in her conversation with Mr Georgiadis referred to at [48] above).
25. As the unhappy circumstances of this case show, Lillian's entry into the Deed did not have the effect that she hoped for.

Conclusion

1. Lynda has failed to satisfy me that Lillian's execution of the Deed was brought about by the undue influence of Peter and Helen.
2. The Further Amended Statement of Claim should be dismissed.
3. I will hear the parties as to costs.

Amendments 10 April 2015 - Typographical error in catchwords on coversheet corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 April 2015