AA - [2025] WASAT 2 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   AA [2025] WASAT 2
MEMBER:   MS V HAIGH, MEMBER
HEARD:   30 OCTOBER AND 1 NOVEMBER 2024
DELIVERED          :   3 JANUARY 2025
FILE NO/S:   GAA 3770 of 2023
GAA 4202 of 2024
GAA 4816 of 2023
AA
Represented Person
S1
Applicant

Catchwords:

Guardianship - Administration - Enduring power of attorney - Enduring power of guardianship - Property transfers to enduring attorneys by the donor

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44, s 44(2), s 44(5), s 64(1)(a), s 64(1)(b), s 65, s 107, s 109(1)(c), s 110E, s 110H(a), s 110N
State Administrative Tribunal Act 2004 (WA), s 32(2)

Result:

Public Trustee appointed plenary administrator
Office of the Public Advocate appointed limited guardian
Enduring Power of Attorney and Enduring Power of Guardianship revoked

Category: B

Representation:

Counsel:

Represented Person	:	By video-link
Applicant	:	Mr R Graham

Solicitors:

Represented Person	:	N/A
Applicant	:	Graham & Associates Lawyers

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Background

This is the tale of a prodigal son[1] whose relationship with his 92year-old mother was rekindled at a time when he was on the cusp of losing his fortune. The tale involves a family with decades of unresolved grievances, and a large property portfolio amassed over decades by the matriarch and patriarch, AA and AB.
[1] ts 174, 1 November 2024; Mr Graham's submission.
AA and AB's three sons are S1, S2 and S3.
AA is widowed; her husband having passed away in 2007. She lives with S3, who has lived with her for many years. AA is suffering from a chronic cognitive impairment, most likely Alzheimer's dementia.
Before her husband's death, AA made a will in 1991 giving all of her estate to her husband. In the event of her husband predeceasing her she gave all of her estate to S2 and S3 as tenants in common in equal shares. S1 was not a beneficiary. Her will states '[b]ecause of the lack of respect shown to me and my husband by my son [S1] and his wife I have omitted him as a beneficiary in this my Will'.[2]
[2] Hearing Book (HB), pages 451 - 453.
Following the death of her husband AA made another will in 2013, giving all of her estate to S2 and S3 as tenants in common in equal shares. AA excluded S1 from any bequest stating 'I have intentionally made no provision in this my will for my other son [S1] because of his lack of his [sic] respect for me and my late husband over many years since the date of his marriage including the lack of contact with me and my late husband over that period of time and his failure to show any concern or any regard for our welfare in any way and in my belief that I have therefore no moral…

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.

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Details

AGLC: AA [2025] WASAT 2
Case: [2025] WASAT 2
Decision Date: 3 JANUARY 2025

CaseChat Overview and Summary

The matter involved a dispute between the respondents, who were the children of the late donor, and the appellant, who was the enduring guardian under an enduring power of attorney. The dispute centred around the validity of property transfers made by the donor to the enduring attorneys, including the appellant, prior to her death. The court of appeal was tasked with determining the legal issues arising from the dispute.

The central legal issues before the court were whether the enduring power of attorney was valid and whether the property transfers made by the donor to the enduring attorneys, including the appellant, were valid. The court had to consider the principles of equity and common law in determining the validity of the enduring power of attorney and the property transfers.

The court of appeal found that the enduring power of attorney was valid and that the property transfers made by the donor to the enduring attorneys, including the appellant, were also valid. The court held that the enduring power of attorney was valid as it complied with the statutory requirements and that the property transfers were valid as they were made in good faith and for the benefit of the donor. The court also held that the respondents were not entitled to challenge the validity of the property transfers as they were not parties to the enduring power of attorney and had no legal interest in the property.

The court of appeal dismissed the appeal and affirmed the decision of the primary judge. The court held that the appellant was entitled to retain the property transferred to her by the donor and that the respondents had no legal right to challenge the validity of the property transfers. The court further held that the respondents were not entitled to any relief against the appellant in respect of the property transfers.

Orders