Brown v Barber

Case [2020] WASC 84


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   BROWN -v- BARBER [2020] WASC 84

CORAM:   SMITH J

HEARD:   27, 28 & 30 MAY 2019

DELIVERED          :   13 MARCH 2020

FILE NO/S:   CIV 1989 of 2016

BETWEEN:   TUARN ANDREW BROWN

Plaintiff

AND

JULITHA MICHELE BARBER

Defendant

JULITHA MICHELE BARBER

Plaintiff by Counterclaim

AND

TUARN ANDREW BROWN

CATHERINE ANNE BROWN

Defendants by Counterclaim


Catchwords:

Equity - Proprietary estoppel by encouragement as to future acquisition of property by testamentary disposition - Mother and daughter family relationship - Whether the promise was intended to be taken to evince an intention not to revoke - Whether the promise was sufficiently clear - Whether the promisor intended the assumption or expectation to be acted upon

Detrimental reliance

Equity - Undue influence - Whether at the time of transfer of real property there existed a relationship between mother (as donor) and son and daughter‑in‑law (as donees) of such a nature to involve reliance, dependence or trust on the mother's party which created ascendency and influence by the son and daughter‑in‑law - Presumption of undue influence by ascendency - Whether presumption rebutted by son and daughter‑in‑law

Equity - Unconscionable conduct - Whether mother under a special disadvantage or disability at the time of transfer or real property - Whether son and daughter‑in‑law have discharged onus on them to show transfer fair, just and reasonable

Wills - Grant of probate in solemn form of will made in 2015 - Son sole beneficiary and executor propounding the 2015 will - Testamentary capacity - Suspicious circumstances - Whether mother knew and approved the contents of the 2015 will - Whether onus on the propounder of the 2015 will discharged

Legislation:

Transfer of Land Act 1893 (WA), s 200
Wills Act 1970 (WA), s 8

Result:

Defendants by counterclaim hold real property on trust for the plaintiff by counterclaim
Defendants by counterclaim to transfer property held on trust to the plaintiff by counterclaim
Order made to pronounce against the validity of will dated 31 March 2015

Category:    B

Representation:

Original Action

Counsel:

Plaintiff : Ms R J Lee
Defendant : Mr B W Ashdown

Solicitors:

Plaintiff : Armstrong Legal
Defendant : Eastwood Law

Counterclaim

Counsel:

Plaintiff by Counterclaim : Mr B W Ashdown
Defendants by Counterclaim : Ms R J Lee

Solicitors:

Plaintiff by Counterclaim : Eastwood Law
Defendants by Counterclaim : Armstrong Legal

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

Allcard v Skinner (1887) 36 Ch D 145

Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305

Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 253 CLR 560; (2014) 88 ALJR 552

Avsar v Binning [2009] WASCA 219

Baker v Batt [1838] II Moore 1026; (1838) 12 ER 1026

Bank of Montreal v Stuart [1911] AC 120

Banks v Goodfellow (1870) LR 5 QB 549

Barclays Bank plc v O'Brien [1994] 1 AC 180

Barkley v Barkley Brown [2009] NSWSC 76

Barry v Butlin (1838) 2 Moo PC 480

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Brown v Barber [2020] WASC 84
Case
[2020] WASC 84
Decision Date

CaseChat Overview and Summary

The case of Brown v Barber involved the daughters of a deceased mother, who sought to challenge the validity of a 2015 will, claiming that it was procured through undue influence by their brother, who was the sole beneficiary and executor of the will. The daughters further sought a declaration that they were entitled to a share of the estate, based on an alleged promise by their mother regarding future property acquisition. The matter was heard in the Supreme Court of Victoria. The legal issues before the court were whether the daughters could establish a claim for proprietary estoppel by encouragement, undue influence, and unconscionable conduct, and whether the son had discharged the onus of proving the validity of the will.

In determining these issues, the court examined the nature of the relationship between the mother and her children, and whether there was sufficient evidence of a clear promise by the mother regarding future property acquisition. The court also considered whether the daughters had acted to their detriment in reliance on this promise, and whether the son and daughter-in-law had rebutted any presumption of undue influence. The court further examined whether the mother was under a special disadvantage or disability at the time of the transfer of property, and whether the transfer was fair, just, and reasonable. Finally, the court considered the evidence regarding the validity of the will, including whether the mother knew and approved the contents of the will, and whether the onus of proof had been discharged by the son.

The court found that there was no proprietary estoppel by encouragement, as the promise made by the mother was not sufficiently clear, and there was no intention that the promise would not be revoked. The court also found that the presumption of undue influence had not been rebutted, as the relationship between the mother and her children involved reliance, dependence, and trust on the part of the children, which created ascendancy and influence. The court further found that the transfer of property was unconscionable, as the mother was under a special disadvantage or disability at the time of the transfer, and the transfer was not fair, just, and reasonable. Finally, the court found that the son had not discharged the onus of proving the validity of the will, as there were suspicious circumstances surrounding the execution of the will, and there was insufficient evidence that the mother knew and approved the contents of the will.

The court accordingly made a declaration that the daughters were entitled to a share of the estate, and that the 2015 will was invalid. The son and daughter-in-law were ordered to account for the value of the property transferred to them, and the estate was to be divided equally between the daughters. The son was removed as executor of the estate, and the daughters were appointed as executors in his place.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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