Hewitt v Gardner - [2009] NSWSC 1107

CITATION: Hewitt v Gardner; Hewitt v Gardner [2009] NSWSC 1107

HEARING DATE(S): 13, 14, 15 and 29 July 2009

JUDGMENT DATE :
16 October 2009

JURISDICTION: Equity Division

JUDGMENT OF: Ward J

DECISION: In 2693/07 Orders for provision made in respect of three of the plaintiffs. In 2046/08 Declare that the defendant holds property on trust for the estate. Order property to be reconveyed.

CATCHWORDS: EQUITY - general principles - undue influence and duress - deceased transferred home to defendant for consideration of one dollar - defendant the daughter and primary carer for deceased - whether relationship between deceased and defendant gave rise to presumption of undue influence - whether presumption rebutted - held that relationship gave rise to presumption of undue influence - presumption not rebutted - SUCCESSION - family provision and maintenance - deceased left will and codicil giving lifetime occupation right and residue of estate to one of eight adult children - claims for provision made by remaining seven children - whether inadequate provision made for some or all plaintiffs - held that inadequate provision made for three of plaintiffs - relief granted

LEGISLATION CITED: Family Provision Act 1982
Uniform Civil Procedure Rules
Real Property Act 1900

CATEGORY: Principal judgment

CASES CITED: Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 23
Barkley v Barkley-Brown [2009] NSWSC 76
Blomley v Ryan (1956) 99 CLR 362
Breen v Williams (1995-6) 186 CLR 71
Bridgewater v Leahy (1998) 194 CLR 457
Collings v Vakas [2006] NSWSC 393
Commercial Bank of Australia Limited v Amadio (1993) 151 CLR 447
Hewitt v Gardner; Hewitt & Gardner [2009] NSWSC 705
Hospital Products Ltd v United Surgical Corporation (1984) 156 CLR 41
Huguenin v Baseley (1807) 14 Ves Jun Supp 273
Johnson v Buttress (1936) 56 CLR 113
Johnson v Johnson [2009] NSWSC 503
Louth v Diprose (1992) 175 CLR 61
McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484
Morrison v Coast Finance Limited (1965) 55 DLR (2d) 6710
Nelson v Nelson (1995) 184 CLR 538
Palmer v Dolman, Dolman v Palmer [2005] NSWCA 361
Poosathurai v Kanappa Chettiar (1919) LR 47 Ind App 1
Re Birtchnell (1929) 42 CLR 384
Riz v Perpetual Trustee Australia Limited [2007] NSWSC 1153
Singer v Berghouse (No 2) (1994) 181 CLR 201
Stivactas v Michaletos (No 2) [1994] ANZ ConvR 252
Turner v Windever [2003] NSWSC 1147
Vigolo v Bostin (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Watkins v Combes (1922) 30 CLR 180
Whereat v Duff [1972] 2 NSWLR 147
Winefield v Clarke [2008] NSWSC 12

TEXTS CITED: Anglo-American Law Review 1998

PARTIES: Nita May Hewitt (First Plaintiff in both matters)
Ronald Malcolm Gardner (Second Plaintiff in both matters)
Nancy Ellen Hart (Third Plaintiff in both matters)
Margaret Patricia Lipscome (Fourth Plaintiff in both matters)
Jennifer Mary Bingham (Fifth Plaintiff in both matters)
Shirley Ann Evans (Sixth Plaintiff in both matters)
Pam Louise Brooks (Seventh Plaintiff in both matters)
Lysle Brooks (Eighth Plaintiff in 2046 of 2008)
Joy Lynette Gardner (Defendant in both matters)

FILE NUMBER(S): SC 2693/07; 2406/08

COUNSEL: M Bridger (Plaintiffs)
M Lawson (Defendant)

SOLICITORS: John Moon (Plaintiffs)
R&M Legal (Defendant)

- 60 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WARD J

FRIDAY 16 OCTOBER 2009

2693/07 NITA MAY HEWITT & ORS V JOY LYNETTE GARDNER
2046/08 NITA MAY HEWITT & ORS V JOY LYNETTE GARDNER

JUDGMENT

1 These two sets of proceedings relate to matters in dispute between the children of the late Essie Lila Lipscombe. The defendant in both sets of proceedings, Ms Joy Lynette Gardner, is the second youngest child of the deceased and the executrix named in the last will the deceased made before her death in 2006. Probate has not been sought of that 2003 will as the deceased, at the date of her death, held no assets of any substance. In August 2004, the deceased had transferred the whole of her interest in her family home to Ms Gardner for the sum of one dollar.

2 In the first set of proceedings (2693/07), claims under s 7 of the Family Provision Act 1982 have been brought by Ms Gardner’s seven siblings, each seeking provision out of the estate of the deceased and an order for designation of the family home transferred to Ms Gardner in 2004 as notional estate of the deceased. For the reasons set out in my judgment published on 24 July 2009 (Hewitt v Gardner; Hewitt v Gardner [2009] NSWSC 705), I ordered that these proceedings continue in the absence of a representative of the deceased’s estate, subject only to confirmation, which was later received, as to the position of Mrs Patricia McLeod (a granddaughter of the deceased who would, if the plaintiffs’ challenge to the validity of a 2004 codicil in the second set of proceedings were to succeed, be entitled under the 2003 will to a contingent interest in the residue of the estate). I refer to these as the Family Provision Act proceedings.

3 In the second set of proceedings (2046/08), Ms Gardner’s siblings and Mr Lysle Brooks (her brother-in-law, who is named as an executor in an earlier 1995 will) seek an order setting aside the inter vivos transfer of the family home to Ms Gardner in 2004. I refer to these as the undue influence proceedings.

4 As they stood when the matter came before me for hearing, in the undue influence proceedings the plaintiffs also sought a declaration that both the 2003 will and 2004 codicil are invalid; and an order that there be a grant of probate to Mr Brooks in respect of the 1995 will. In the course of discussion at the commencement of the hearing, Counsel for the defendant (Mr Lawson) raised issues as to standing and procedural aspects of the respective proceedings. Subsequently, Counsel for the plaintiffs in both proceedings (Mrs Bridger) advised me that, for the purposes of the hearing before me, the plaintiffs would not seek to press the probate claims. As I understand it, this is because it was considered that a determination of the remaining issues in the undue influence proceedings, together with a determination of the Family Provision Act claims, might obviate any challenge by the plaintiffs to the 2003 will and 2004 codicil. Mrs Bridger nevertheless accepted that if the Family Provision Act proceedings were pursued to the point of a final determination in relation to the adequacy of provision made for the plaintiffs under the 2003 will, as amended by the 2004 codicil, then that may constitute an election which would preclude the plaintiffs (whatever the outcome of those proceedings) later seeking to challenge the validity of the will and codicil which had been the subject of that determination.

5 In the undue influence proceedings I ordered that one of the plaintiffs, Mrs Nita May Hewitt, be appointed under r 7.10 of the Uniform Civil Procedure Rules to represent the estate of the deceased.

6 It is alleged by the plaintiffs (to whom I will refer, without intending any disrespect, collectively as the siblings) that the deceased (who it is not disputed was in ill-health, frail and elderly at the time of the inter vivos transfer) did not receive any independent legal or financial advice before she signed the transfer in relation to the family home and that Ms Gardner did not obtain the fully informed consent from the deceased to her becoming, for the consideration of one dollar, the registered proprietor of the family home in place of the deceased. (In that regard, there is no dispute that the deceased received legal advice from a solicitor, Mr David Richardson, in connection with the 2004 codicil and the real property transfer, but there was an issue raised as to from whom he had received instructions in relation to those matters and as to the independence or effect of his advice in relation to them.) It is alleged that Ms Gardner holds her interest in the family home as constructive trustee for the estate of the deceased and, further or in the alternative, that Ms Gardner holds her interest in the home on a resulting trust for the estate of the deceased.

7 If the family home is held on trust for the estate of the deceased as a result of the determination of the undue influence proceedings, or if the family home is designated as notional estate in the Family Provision Act proceedings, then (subject to the impact of any costs orders in respect of the two sets of proceedings) there may be some (albeit small) net distributable estate. If not, it is accepted that there are effectively no assets available for distribution in the deceased’s estate.

8 Under the last will of the deceased (the 17 March 2003 will as amended by a 12 August 2004 codicil, executed by the deceased on the same day as the inter vivos transfer) a lifetime right of occupation of the family home was given to Ms Gardner, to whom the residue of the estate was also given. Ms Gardner’s consent would be required to any sale of the home and it would only be if Ms Gardner were to relinquish possession of the home during her lifetime that her siblings would receive the small pecuniary legacy provided for each under the will before the residue passed to Ms Gardner. There is a gift over for the surviving children of the deceased or their children, in equal shares.

Issues

9 The issues for determination may be broadly summarised as follows:

(a) was Ms Gardner in a position of ascendency viz-a-viz the deceased (and conversely, was the deceased in a position of dependence on Ms Gardner) so as to give rise as a matter of law to the presumption of undue influence?

(d) is the inter vivos transfer otherwise liable to be set aside in equity as a catching bargain or unconscionable dealing?

Family Provision Act

(a) if the family home is not otherwise part of the estate, should it be designed as notional estate?

(b) as a question of fact, was the provision made for any of Ms Gardner’s siblings in the 2003 will (as amended by the 2004 codicil) inadequate for his or her proper maintenance, education and advancement in life?

(c) if so, as a matter of discretion, what is the proper level of maintenance and adequate provision which should be made for each such sibling?

Summary

10 For the reasons set out below, I find as follows:

(a) there was a sufficient position of ascendency/dependency between Ms Gardner and the deceased to raise the presumption of undue influence;

(b) the presumption of undue influence was not rebutted and, accordingly, the transfer of the family home should be set aside and meanwhile Ms Gardner holds that property on trust for the estate of the deceased;

(c) in light of my findings on the undue influence claim, it is not necessary to determine whether Ms Gardner owed (or was in breach of) fiduciary duties to the deceased; Ms Gardner would have had fiduciary duties in relation to any exercise of powers under the Power of Attorney held by her, and probably in relation to the carriage of banking transactions as the deceased’s agent, but in respect of these no complaint is made in this case. Insofar as Ms Gardner may have owed fiduciary obligations deriving from the position of ascendancy which she occupied, these would not take the matter any further than the conclusion reached in relation to the undue influence claim;

(d) again, in light of my findings on the undue influence claim, it is not necessary to determine this issue, but had it been necessary to determine I would have held that the inter vivos transfer did not amount in equity to a catching bargain or unconscionable dealing and hence was not otherwise liable to be set aside.

(ii) In the Family Provision Act proceedings:

(a) in light of my findings on the undue influence claim this question does not arise, but had it arisen I would not have been satisfied that the family home should be designated as notional estate of the deceased as I am not satisfied the transfer was made for the purpose of denying or limiting claims by the siblings to the estate;

(b) in relation to each of Mrs Lipscombe, Mrs Evans and Mrs Bingham, there was inadequate provision made for her under the 2003 will, as amended; otherwise the provision made for the balance of the siblings was not inadequate;

(c) in relation to each of Mrs Lipscombe, Mrs Evans and Mrs Bingham the adequate provision would be to increase the pecuniary legacy made for each of them to a proportion of the net distributable estate (that proportion being 10% each for Mrs Lipscombe and Mrs Evans and 5% for Mrs Bingham), such legacy to be paid out of the proceeds of sale of the family home rateably with payment out of the proportion of the estate which I consider Ms Gardner should receive by way of legacy in place of her entitlements under the will (namely 75%), with the proviso that if the net distributable estate exceeds the sum of $220,000, then the pecuniary legacies of $2,000 each for the remaining siblings should also be paid.

11 I should note that I have framed the orders for provision in this way because there seems to be a wide divergence between the estimates placed on the value of the family home, and no current valuation was in evidence. At the time the instructions were given in relation to the transfer the suggestion was that a valuation of $340,000 was or might be forthcoming; at the time the solicitor who acted on the transfer sought advice as to an exemption from stamp duty an estimated value of $360,000 was used; the estimate referred to by Mrs Bridger in submissions was $230,000; Ms Gardner’s affidavit sworn in 2007 (based on a letter of October 2006 said to have been but not annexed thereto) estimates the value at $210,000. The estimated costs of the proceedings, as disclosed in Counsels’ closing written submissions, are in the order of $226,000. Therefore, subject to the final costs orders (as to which Counsel seek to make submissions), it is likely that much if not all of the proceeds of sale will be consumed by costs (and this was the certainly the basis on which submissions were made during the course of the hearing). However, in part that depends on the accuracy of the estimates of the property’s value. Therefore there remains a prospect of at least a partial distribution of the legacies I propose to order. That said, I recognise it is doubtful that the pecuniary legacies provided for under the will for each of Mrs Hewitt, Mrs Hart, Mr Gardner and Mrs Brooks will be able to be satisfied out of the estate.

Background facts

· Family Background

12 The deceased was born in 1919. She had eight children, the eldest of whom is Mrs Hewitt, born in 1939, and the second youngest of whom is Ms Gardner, born in 1949. The deceased purchased the family home in Ulladulla with compensation moneys received after the death of her husband in a work related accident in 1956. Some compensation moneys were also payable under the relevant compensation legislation to each of her then dependent children (those being all of the children other than Mrs Hewitt) and there is evidence that those moneys (which have been unable to be quantified) contributed towards the acquisition of the family home (in that the Workers Compensation Commission had taken a mortgage over the property to secure the children’s entitlements and when they were all of age they apparently disclaimed their entitlements in order for the mortgage to be discharged and the property has since then been unencumbered – see Exhibit L).

13 Ms Gardner is a 60 year old divorcee. She left home when she was 25 and was married. In about 1985, after her marriage broke up, Ms Gardner moved back to live with her mother in the family home at her mother’s suggestion. She remained living there until her mother’s death in 2006. Ms Gardner’s evidence was that she worked part-time in the period from 1985-1994 and contributed moneys (whether by way of rent strictly so-called or otherwise) to the household expenses both during that period and later when she was the recipient of a pension. Ms Gardner was the primary carer of her mother, and in receipt of a carer’s pension, for about 12 years prior to her mother’s death. Ms Gardner took on the role of carer after her mother had a major bowel operation in 1994.

14 Ms Gardner says in her affidavit (and confirmed this in the witness box) that after this operation the deceased became “completely reliant” on her and had little or no capacity to attend to the activities of daily life. Ms Gardner’s evidence was that from 1994 the deceased was dependent on her for her activities of life and daily needs, including washing, bathing, personal grooming, toileting, laundry, gardening, housework, shopping, banking and other transactions, and she also assisted her mother with matters such as doctors’ appointments (paragraph 21 of Ms Gardner’s affidavit sworn 19 November 2007).

15 Ms Gardner’s evidence was that the deceased’s health had deteriorated after 1994 to such an extent that Ms Gardner had to be there with her mother day and night from 1994 to her death in May 2006. During this period the deceased suffered from pneumonia. Her health became progressively worse. The deceased was admitted to hospital on a number of occasions between February 2002 and 21 May 2004, including hospitalisation for a broken leg in about April 2004 (an occasion on which there was an altercation between Ms Gardner and some of her siblings about which evidence was given before me). Although there was some dispute by one or more of her siblings as to the extent and quality of the assistance she rendered to her mother over the years, there seems little doubt that from 1994 onwards the deceased was increasingly dependent on Ms Gardner’s care and assistance. A medical certificate obtained in July 2004 (in circumstances to which I will refer later), which I admitted not for the truth of its contents but as to the matters of which the deceased’s solicitor was aware when acting in relation to the will and the transfer, attested to Ms Gardner’s care over the period prior to her mother’s death.

16 There was evidence from various of the siblings from which it was suggested that the court should conclude that Ms Gardner did not encourage, and in some cases positively discouraged, communication between her mother and some or all of her siblings, with the effect (it was submitted by Mrs Bridger) that the deceased had become increasingly emotionally and physically dependent upon Ms Gardner. One or more of the siblings gave evidence of occasions on which they said Ms Gardner had refused to bring their mother to the telephone when they called or had slammed down the telephone receiver disconnecting their calls (see eg Mr Gardner) or had told them they were unwelcome in the house (see eg Mrs Lipscombe’s affidavit) or had rejected their offers of help in ungracious terms or imposed unreasonable demands on them in terms of attendance on their mother (see Mrs Brooks’ affidavit and her evidence that her sister had said to her words to the effect, if you loved mum you would visit her now – that being said when Mrs Brooks was some 5 hours away in Tumut at about 9pm one night) or had otherwise spurned their gifts to their mother.

17 There was evidence of attempts by various of the siblings to maintain contact with and assist their mother over the years (such as the installation of a kitchen and barbecue in the family home by Mrs Brooks, the fact that Mrs Hewitt, Mrs Evans and Mrs Hart continued to visit their mother in the hospital after they considered they had been made unwelcome at the family home by Ms Gardner, and that Mrs Hewitt continued to send roses to her mother, via her son, even after she stopped visiting the family home in about 2003/2004). I would conclude from the evidence that the reason that there was not greater contact between some of the siblings and their mother in the period from 1994 to their mother’s death was largely a function of the difficulties in the relationship between the siblings and Ms Gardner, wherever the fault for that may ultimately lie. (Ms Gardner, for example, readily accepted that she had not told her siblings when her mother was hospitalised and dying – dismissively saying that they already knew anyway because Mrs Lipscombe was always at the hospital. And there was nothing to suggest that Mrs Hewitt and Mrs Hart did not, as they said, sit by their mother’s hospital bed on her final day and until she drew her last breath.) There was evidence on both sides that the deceased was aware that there were difficulties over the years in the relationship between the parties.

18 My observation of the witnesses in the witness box was that the siblings, and particularly Mrs Lipscombe, were (perhaps to varying degrees) upset and genuinely affected by the fact that they had not had as much contact with their mother over the period.

19 Caution must clearly be exercised in placing weight on alleged incidents described in general terms and of which there is little if any independent corroboration. As Young J, as his Honour then was, noted in Walker v Walker (NSWSC, 17 May 1996, unreported), it is often impossible to work out where the fault lies in situations where there is estrangement or a degree of separation between family members (noting that “[t]he important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff”).

20 It is clear that there was a breakdown in the relationship between Ms Gardner on the one hand and her siblings on the other. Mrs Bingham was not prepared to disclose her address for fear of her sister (even though it seems Mrs Bingham had been out of contact with her for many years). Each of Mrs Hart, Mrs Hewitt and Mrs Evans said that they had been unable to return to the family home in the last couple of years of their mother’s life because of the treatment they had received from Ms Gardner. Matters seem to have reached a critical point after the hospital altercation insofar as Ms Gardner instructed the solicitor who had acted on her mother’s 2003 will (Mr Ryan) to write to one of her sisters (Mrs Brooks) to demand a retraction of certain statements, in which it was asserted that Mrs Brooks “continued to be welcomed” in the family home (which was, at that stage, still the deceased’s home). What is clear therefore is that there were ongoing disputes over a number of years between Ms Gardner on the one hand and various of her siblings on the other. I accept that those disputes adversely impacted on the relationship between the deceased and various of her children during the last few years of her life (in the sense that because of this there was not as much contact between them as there would in all probability otherwise have been).

21 I accept that the evidence of the siblings as to their perception of the events was truthfully given and that they genuinely believe that their sister, by her conduct, had undermined or been destructive of their relationship with their mother. I accept that Ms Gardner has a different perception of those events. For her part, she formed the view that her siblings were too critical of the care she gave to her mother and she was in turn critical of them for not doing enough to help her in that regard (though a number of her sisters say they had offered to help and that their efforts had been rebuffed).

22 Various of the siblings gave evidence that, for some years prior to the second half of 2004, the deceased appeared to be quite different in the way she interacted with them on their visits to her when Ms Gardner was present than she had been or than she was when Ms Gardner was not present. This evidence was very general in nature and seemingly largely one of impression. The witnesses, by and large, had difficulty identifying particular occasions from which they had drawn this conclusion (although there were instances set out in various of the affidavits). The impression which was conveyed to me was that the deceased, perhaps understandably, was anxious to avoid confrontation and keep the peace between her children. However, of itself that would not be sufficient for me to form the view that the deceased was therefore likely to have acted blindly on Ms Gardner’s wishes and in any event I think no weight can be placed on this evidence. The evidence of the siblings (confirmed by them orally in the witness box) suggested that the deceased was capable of asserting her own views as to matters (such as works to the house or whether it should be sold, and even as to whether the siblings were welcome visitors to the house).

23 Against this general background, the events leading up to the present disputes must be considered.

· Wills

24 In March 1995, the deceased made a will appointing Mr Brooks (her son-in-law) as executor; giving small gifts of personalty to each of her children; giving to Ms Gardner a right to reside in the family home for life or until she acquired her own home or no longer wished to remain at the home; and dividing the residue equally amongst all of her children who were living at the date of her death. That will provided that, upon the death of Ms Gardner or her relinquishing her residency of the family home, the house should be sold and the net moneys divided equally amongst the survivors of her children and their children. (The will also provided that Ms Gardner’s occupation of the home in accordance with the right granted under the will was subject to her being liable, inter alia, for payment of rates and taxes in relation to the property.)

25 In March 2003, the deceased made her final will. In this will, she appointed Ms Gardner as executrix. As noted earlier, she gave to Ms Gardner a right to occupy the house for as long as she wished or, until, in the opinion of the executrix (ie, Ms Gardner herself), Ms Gardner had ceased to live in the house; and directed that the house not be sold without Ms Gardner’s consent. (Under this will, liability for rates and taxes was to be shared equally between Ms Gardner and the estate.) A pecuniary legacy of $2,000 was given to each of her seven other children (though given that the family home was the estate’s only asset those legacies could not have been paid unless Ms Gardner gave her consent for the sale of the home). The residue of the estate was left to Ms Gardner with a gift over to the deceased’s granddaughter (Mrs Lipscombe’s daughter), Mrs Patricia McLeod, or Mrs McLeod’s children. As noted, the 2003 will was prepared by Mr Peter Ryan, a local solicitor who attended on the deceased at her home at least twice, once for the purpose of obtaining instructions and then for execution of the will.

26 At some stage around 2002/2003 (but clearly prior to the death of Ms Gardner’s then fiancé, Mr Fred Hughes, in May 2004) there was an altercation between Ms Gardner, Mr Hughes, and three of Ms Gardner’s siblings (Mrs Hart, Mrs Evans and Mrs Hewitt) which took place in the family home after the deceased had returned from an admission to hospital, in which Ms Gardner accepts that she said words to the effect, “I will fight youse till the end. Mark my words. I’m fighting this to the bitter end” (T 375). (There was a similar altercation at the hospital on an occasion in around April 2004 between Ms Gardner and one or more of those sisters.) There are differing accounts of this and other incidents. However, Ms Gardner accepted that words to the above effect were said. She denied any physical aggression towards her sisters. Mrs Hart, Mrs Evans and Mrs Hewitt’s evidence of the earlier of the two incidents, which occurred at the family home, was broadly consistent (although Mr Lawson took Mrs Hart to some minor discrepancies between two of her affidavits as to the outcome of the alleged pushing by Ms Gardner). Ms Gardner is also said to have told one or more of her sisters words to the effect that she had a lawyer.

27 The rather curious exchange as to the intention of Ms Gardner to fight to the bitter end (since, on their evidence which I accept, Ms Gardner’s siblings were apparently unaware what it was that Ms Gardner was suggesting she would fight to the bitter end) suggests, at the very least, a perception on Ms Gardner’s part that there would be a family dispute at some point. There is no suggestion of any potential dispute other than the deceased’s testamentary and real property dispositions. As the latter had not occurred at the time of the altercations, I would infer that any perceived dispute was that Ms Gardner thought her siblings might challenge to her mother’s will and/or her occupation of the family home. Ms Gardner said in the witness box that she thought her siblings were “out to get her”, a concern she accepts that she later relayed to her mother.

28 On 16 January 2004, the deceased executed an enduring power of attorney prepared by Mr Ryan appointing Ms Gardner as her attorney. (Subsequently, on 29 July 2004, the deceased executed an Appointment of Enduring Guardian prepared by Mr Richardson, appointing Ms Gardner as her guardian.)

29 In or about July 2004, Ms Gardner became concerned that her siblings were intending to throw her out of the family home after her mother’s death and were going to take everything and leave Ms Gardner with nothing (T 375). Ms Gardner gave evidence that she was told by a family member that her sisters and brother were out to get her and that they had had a meeting in which this was discussed. (It seems from what was put to Mrs Evans in cross-examination that this meeting was said to have taken place prior to 7 July 2004 - see T 250-252 and T 253.) Ms Gardner admits that she told her mother that this was what she had been told.

30 It seems impossible not to conclude that it was this event which precipitated the making of the 2004 codicil, since Ms Gardner was emphatic that her mother had said she wanted to change her will or to change things to “protect” her. The only thing from which it could be suggested that Ms Gardner, or her mother, thought she needed protection at this stage was the alleged family plan to throw Ms Gardner out of the home.

31 The alleged existence of such a plan first emerged after a number of the siblings had already been cross-examined. Mr Lawson says that he had only then received instructions in relation to the matter (though presumably his client could have raised this at any time from the commencement of the proceedings or indeed the hearing during much of which she was in court). During the cross-examination of Mrs Evans it was put to her that there had been a meeting between the siblings prior to 7 July 2004 (though it is not clear if all were present). She could not recall if Mrs McLeod (her niece) had been present, nor if Ms Gardner had been present (though I note there was no suggestion by Ms Gardner that she had in fact been at that meeting).

32 Although there was some confusion as to whether Mrs Evans was denying the allegation that the siblings had decided to throw Ms Gardner out of the home, or could not recall what had been put to her as to that having been said, ultimately my observation of the manner in which she gave her evidence was that when she said she “swore on the Bible that I did not say that”, that was a firm denial of the allegation that the siblings had such a plan (T 251). Mrs Lipscombe, when recalled for further cross-examination on this point, was adamant in her denial (T 253). Instructions were sought by Mrs Bridger from her clients and it was noted for the record that if the same question were to be put to each of the siblings they would similarly deny that there had been a discussion as alleged.

33 I note (as the transcript records I noted at the time) that my observation of the reaction of each of the siblings then in the court room (Mr Gardner being the only one not then present as he had needed to return interstate) when the relevant question was put to Mrs Evans was that there was visible disbelief and indignation at that allegation. The reaction of the siblings was immediate and clearly apparent from the bench, and could not have been rehearsed. I have no doubt this was a genuine reaction.

34 It is significant in my view that it seems that it must have been almost immediately after Ms Gardner conveyed to her mother the information she said she had received as to what was being planned that she contacted Mr Ryan to make an appointment for him to see her mother (and that this was in relation to her mother’s will).

35 On 7 July 2004, Mr Ryan visited the deceased and was apparently given instructions about changes to her will. Mr Ryan was not called to give evidence. Ms Gardner admitted that she was present at the house and at the meeting when Mr Ryan met with the deceased. She says this was at the deceased’s request. When put to Ms Gardner (at T 376.10) that the deceased had over the years until she died wanted the house to go to all her children, Ms Gardner’s response was “Not till she died”, perhaps suggesting that she was aware that this had at one time been her mother’s intention but in any event indicating that she was certainly aware that her mother did not hold that intention when she died.

36 The most curious part of events was that the following day, 8 July 2004, Ms Gardner contacted another solicitor, Mr David Richardson, and informed him that the deceased wanted to change her will. It is admitted that Ms Gardner made all the telephone arrangements with Mr Richardson (and that she had made most if not all telephone calls on behalf of her mother since 1994). There is no suggestion that the deceased (or Ms Gardner) had had any dealings with Mr Richardson prior to this. Mr Richardson’s note of his initial telephone conversation with Ms Gardner (Annexure E to his affidavit) records that the deceased (or perhaps Ms Gardner) had been referred to him by a Jeanette Robertson but Ms Gardner denied any knowledge of a woman by that name (as indeed she denied having conveyed to Mr Richardson almost all the information recorded in his file note which could only have come from her and which he deposed had come to him from her).

37 Ms Gardner gave no explanation in her affidavit as to what had happened on 7 July 2004 nor as to why there should be a change of solicitors in such a fashion. Mr Richardson says he was not told of any such reason. It is not suggested that Mr Richardson knew, until later in the month when he received a letter from Mr Ryan’s office forwarding the deceased’s will as requested, that Mr Ryan had had a meeting with the deceased the very day before she had given Mr Richardson instructions in relation to the same topic – a change of her will. Nevertheless, I note that when he did learn of this perhaps surprising coincidence of events he did not see any reason to raise a query as to this with the deceased. Mr Richardson’s explanation for the fact that this was not a matter of concern to him was that people change solicitors and perhaps she wasn’t happy with the advice.

38 However, it does seem to me a matter which might reasonably have put a solicitor experienced in testamentary matters, as he was, on enquiry as to the circumstances in which there had been an apparent overnight change of heart as to who should draft the will (particularly when, as it emerged, the only substantive change which ultimately seems to have been required was to omit Ms McLeod from the gift over provision – a matter not apparently discussed with him on his first meeting with the deceased on 13 July 2004 and therefore presumably not the cause of the desire to change solicitors) at least in circumstances where (by then) he was aware of concerns within the family as to Ms Gardner’s influence over the deceased and there had been an unexplained change in direction in terms of his instructions from amending the will to preparing a real property transfer for the sum of one dollar. Mr Richardson clearly had in his mind the potential for a challenge to be made by Ms Gardner’s siblings – since he not only says he advised the deceased and Ms Gardner as to the operation of the notional estate provisions of the Family Provision Act, but also took steps (which I detail below) to obtain a medical certificate for use in any such challenge.

39 Mr Richardson’s notes do not suggest, and he does not believe, that in Ms Gardner’s initial telephone conversation with Mr Richardson any transfer of the family home to Ms Gardner was mentioned.

40 Mr Richardson met with the deceased on 13 July 2004 at the deceased’s home. Contrary to what Ms Gardner’s affidavit deposed (and to her evidence in the witness box), Ms Gardner must have been present during at least part of the meeting, since Mr Richardson’s evidence was that some of the instructions recorded in his file note (in relation to an RB White valuation of the family home (T 196-170; T 183-184) and details of the proposed new executor, Mr David Gumley (T 172/T 187)) were given to him by Ms Gardner.

41 I should note that Ms Gardner’s evidence differed from that of Mr Richardson in a number of respects. First, as to what was said to him in the first telephone call arranging the meeting with her mother; secondly, as to where the first and all subsequent meetings at the home took place (Ms Gardner placing these meetings in the kitchen, Mr Richardson in the lounge room); thirdly as to whether Ms Gardner was present for more than the introduction and farewell; fourthly as to whether Ms Gardner had given any instructions or information at all during the meeting; and, crucially, as to whether Ms Gardner was aware of her mother’s then expressed desire to transfer the house to Ms Gardner (or had discussed it with her beforehand). Ms Gardner’s evidence (on this and other matters) was confused and contradictory. While some of the confusion (as to where the meeting took place or as to how many times Mr Richardson or Mr Ryan had visited the house) may well be explicable as a function of her memory, the adamant denial that Ms Gardner was aware of the proposal to transfer the house to her at any time before 12 August 2004 (as deposed to in her affidavit and both repeated and contradicted in the witness box) defies belief. I regard this as significant because it seems to me that Ms Gardner was at pains to deny anything she thought might damage her denial of the undue influence claim by distancing herself from knowledge that on any view of the matter she must have had prior to 12 August 2004.

42 Given those inconsistencies, I would accept Mr Richardson’s evidence (his recollection largely being based on his contemporaneous records and assumptions derived from his usual practice) wherever it conflicted with that of Ms Gardner. It also causes me to be more sceptical of Ms Gardner’s evidence generally where it conflicts with that of other witnesses, though ultimately I think nothing turns on the conflicts of evidence between Ms Gardner and her siblings.

43 It was at the meeting of 13 July 2004 that the suggestion was first made to Mr Richardson that the family home was to be transferred to Ms Gardner. If Mr Richardson found it surprising that he had arrived to take instructions in relation to a will and was now being told that the only asset which might devolve under the will was to be disposed of in advance by way of inter vivos transfer, Mr Richardson gave no indication of this. Mr Richardson gave evidence that at the meeting on 13 July 2004 Ms Gardner said words to him to the effect, “My mum wants me to have the house” and that the deceased said, “I want Joy to have the house” (T 187.45). Ms Gardner’s evidence, when pressed, was that her mother had said she wanted to “protect her”.

44 Relevantly, Mr Richardson’s notes record that Ms Gardner had already sought (she says on her mother’s instructions) or was arranging a valuation of the house and expected it to come in at $340,000. Ms Gardner says this was the price her mother had put on it (her mother, from all accounts, being someone who had only ever owned one house and there being no suggestion as to the basis on which she might have formed such a view – the only evidence as to discussions with the deceased as to the potential sale of the house being general in nature). Therefore, there is force in Mrs Bridger’s submission that someone may already have advised Ms Gardner or her mother as to the steps to be taken for the house to be transferred (which, presumably, would have included setting a value for stamp duty purposes). In any event, it seems apparent that prior to 13 July 2004 some thought had been given by at least Ms Gardner to the possible transfer of the home to her (since there seems no logical reason why a valuation of the home would otherwise have been sought at that stage).

45 In any event, by the end of the meeting on 13 July 2004, Mr Richardson understood that his instructions were to prepare documentation in relation to the will (as to which he says he did not seek full instructions pending receipt from Mr Ryan of the existing will) and as to the transfer of the home to Ms Gardner, hence his query as to whether she had ever previously owned a home (relevant when considering the applicability of a first home buyers’ stamp duty exemption).

46 At that meeting, Mr Richardson says he asked the usual questions he would ask in order to satisfy himself as to the testatrix’s testamentary capacity and that he formed the view that the testatrix did have testamentary capacity because the answers to his questions were clear and lucid. The questions seem to have related to the testatrix’s family members and family matters. Nevertheless, Mr Richardson formed the view that it would be prudent to obtain a medical certificate as to capacity and he says he advised the deceased as to the potential for the transfer to be designated as notional estate. The precise content of the advice and the deceased’s response were not in evidence. Mr Richardson said he was satisfied that the deceased understood his advice. Pausing there, it would seem from Mr Richardson’s evidence that at that stage the question to which he had turned his mind was the deceased’s testamentary capacity. That is not in issue in the proceedings before me. What is in issue is how the deceased’s testamentary intention was formed. Similarly, the confidence expressed by Mr Richardson in relation to the lack of any undue influence seems to me to be of little assistance in the task I have to perform, particularly since that confidence is attributed almost solely, it would seem, to the evidence that before the deceased signed the codicil Mr Richardson asked her (in the absence of Ms Gardner) was she absolutely sure that this is what she wanted to do – and the deceased said it was.

47 There was some confusion in relation to the provision of the doctor’s certificate on which Mr Richardson apparently placed some reliance at the time in considering capacity. Mr Richardson said he personally attended on the doctor to discuss the matter. Ms Gardner on the other hand was adamant that she had attended the doctor to obtain a certificate. The explanation for this confusion was clarified by Mr Lawson, in that it emerged that there were in fact two certificates (obtained at different times). There is therefore no conflict on the evidence between Mr Richardson and Ms Gardner in this regard. There is, however, an interesting question which arises from the fact that the doctor’s certificate obtained by Mr Richardson incorrectly dated the time from which Ms Gardner had been the deceased’s companion as being from 1976 (an error which was later repeated in the statutory declaration prepared by Mr Richardson and recorded in his file note of the instructions he said had been given to him by the defence in his meeting with the deceased on 29 July 2004). The initial instructions (Exhibit E) had recorded the date more accurately as being 1988 (though in fact the evidence was that it was 1985, a discrepancy of a few years is not remarkable in the circumstances). What is not clear is from where the doctor obtained the incorrect information recorded in the certificate. Ms Gardner surely could not have been the source of the information as she accepted it was clearly wrong. Mr Richardson had not recorded any such information from the first meeting. Yet by the time of the certificate being issued on 15 July 2004 the date is incorrect and then Mr Richardson apparently either obtains instructions to that effect from the deceased on 29 July 2004 when he next visits her or confirms his understanding of her instructions to that effect on that occasion. I do not know that I should draw from that that the deceased was not as clear and lucid as Mr Richardson deposed, but it does suggest that there was some cross-over of the information between the doctor and Mr Richardson, the effect of which was to overstate the position in the deceased’s statutory declaration as to the length of the live-in relationship between the deceased and Ms Gardner. That said, I place no weight on this.

48 By letter of 16 July 2004, Mr Ryan sent to Mr Richardson a copy of the previous will, from which it would presumably have been apparent to him that there was no objective need to change the will in order to “protect” Ms Gardner’s right of occupation of the home (since that was already provided for under the 2003 will) and, as noted earlier, that Mr Ryan had had a meeting with the deceased in relation to her will only the day before he had first been contacted by Ms Gardner.

49 On 14 July 2004, Mr Richardson’s office received a telephone message (Exhibit E) from Mr Gardner to the effect that he was concerned that his mother was being unduly influenced by his sister. Two things are of interest here. First, it is by no means clear to me how it was that Mr Gardner (based in Queensland) had become aware of the proposal to change the will or knew that Mr Richardson was involved in any way. As that was not explored in the hearing, it is not possible for me to comment further on that or to draw any useful inference therefrom. Secondly, Mr Richardson seems to have done nothing to satisfy himself as to whether there was any foundation for that concern. He does not recall returning Mr Gardner’s call, although he assumes he would have done, but more importantly he does not convey to the deceased the concerns which had been conveyed to him in relation to the arrangements.

50 On 29 July 2004, Mr Richardson attended the deceased’s home to take instructions in relation to the will, having by then received her earlier will from Mr Ryan. His file note of that meeting (Annexure G) was in narrative form (almost as if summarising the attendance for inclusion in an account). There was a suggestion that the information recorded in it had been supplied by Ms Gardner (from the deletion of the word “her” to “you” in the sentence “Noting that for many years Joy has been the only one of your family to show any real care or concern for you”). While I doubt that too much can be read into this error, it does raise a concern as to whether the matters subsequently recorded in the statutory declaration as to the deceased’s relationship with the siblings reflect the deceased’s view of events uninfluenced by Ms Gardner’s views on the matter.

51 On this occasion Mr Richardson advised that “Joy Gardner should check with Centrelink to ascertain how (if at all) your pension would be affected by any transfer”. Presumably that related to the deceased’s pension, although the slip-up between “her” and “you” later in the note might raise a doubt as to whether there was advice given as to any effect on Ms Gardner’s own pension.

52 There was evidence that on 3 August 2004 a telephone message had been recorded on Mr Richardson’s file from Ms Gardner chasing up the will. There was no evidence as to what the objective urgency could have been at this date. While this fact is of little weight it does add to a picture of there being a desire (whether on the part of one or both of the deceased and Ms Gardner) to have the documentation concluded quickly.

53 On 5 August 2004, there was a further meeting at the deceased’s home. Mr Richardson’s file note (Annexure H) records this as being an attendance “re transfer of home to Joy Gardner”. Noted against that is an indication that on 10 August 2004 Ms Gardner had confirmed that enquiries of Centrelink had indicated that the deceased’s pension would not be reduced by more than $70 if the home was transferred to Ms Gardner; and that the transfer and codicil were to be signed and ready on 12 August. (It is submitted by Mrs Bridger, and this seems to be the case, that there is no evidence that the deceased knew about any reduction in her pension because of the transfer of the property or was consulted as to whether she could manage on a reduced pension.)

54 On 12 August 2004, the deceased executed the codicil to her 2003 will whereby she gave the residue of her estate to Ms Gardner absolutely, with a gift over equally to such of the deceased’s children as survived her in equal shares and in all other respects confirmed her 2003 will. The deceased also signed a statutory declaration explaining the reasons for her will. On the same day, the deceased executed a Real Property Act 1900 transfer whereby she transferred her sole interest in the family home to Ms Gardner for a consideration of one dollar. (The consequence of that transfer was that the right of occupation of the home, which had been provided for under the 2003 will, and confirmed in the 2004 codicil, became otiose.) From the evidence of Mr Richardson, confirmed by that of Ms Gardner, it appears that the documents other than the codicil were executed in Ms Gardner’s presence and before the codicil was signed.

55 Relevantly, the statutory declaration (Annexure I to Mr Richardson’s affidavit) stated that:

2. Joy has lived with and cared for me since I became ill in 1976 and she has been my full time carer during the whole of that period. [This is incorrect in two respects – Ms Gardner did not return to live with her mother until 1985 and she only became her full time carer in 1994 after her mother’s bowel operation.]

3. For many years I have seen little of my other children except Margaret who calls in two or three times a week and Shirley and Nita who visit me occasionally. None of them do anything for me and the responsibility of my care is left with Joy. [The statement “many years” does not accord with the evidence that it was not until after the altercation in about 2002/2003 that Mrs Evans, Mrs Hart and Mrs Hewitt ceased visiting the family home but other than this the statement, while perhaps putting a gloss on the circumstances in which contact had been limited, seems accurate. The statement that “None of them do anything for me” is disputed by the siblings but, depending on the time to which that refers, would seem to be broadly accurate insofar as Ms Gardner was the full time carer for the period from 1994 onwards.]

4. My other children do not visit me or keep in touch except very occasionally. [This seems accurate in relation to visitations, but there is a dispute over the circumstances in which there was difficulty with telephone contact.]

56 Ms Gardner became registered as the sole owner of the family home in September 2004.

57 A tax invoice for the work done by Mr Richardson in relation to the will was sent to the deceased care of Ms Gardner. A tax invoice in relation to the transfer of the property was sent to Ms Gardner.

58 The deceased died on 12 May 2006.

Undue influence proceedings

59 As the determination of the claims in the undue influence proceedings will determine (absent any designation of notional estate) the size of the estate (the family home having been the deceased’s main asset prior to its transfer to Ms Gardner), it is logical to address those claims first.

60 Pursuant to their Statement of Claim filed 27 March 2008, Ms Gardner’s siblings (and her brother-in-law, Mr Brooks), have alleged that the transfer from the deceased to Ms Gardner of the family home (for the sum of one dollar) in September 2004 is liable to be set aside in equity on a number of grounds including, broadly, presumed undue influence arising out of the relationship between Ms Gardner and the deceased; breach of fiduciary duties owed to the deceased; and this being an unconscionable/catching bargain, in which regard reliance is placed on the alleged inadequacy and/or total failure of consideration for the transfer, an alleged mistake as to the effect of signing (as to which there was no submission made as to what the mistake was) of which it is said Ms Gardner took unconscientious advantage, and the vulnerability of the deceased.

Issue (a) – does the presumption of undue influence arise?

61 Undue influence is presumed where there is a sufficient relationship of dependency upon (or ascendancy exercised by) the donee. Sir Anthony Mason (writing about the doctrines of undue influence and unconscionable dealing in the Anglo-American Law Review 1998) described this kind of relationship as a class 2B relationship (using the terminology adopted by the English Court of Appeal in Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 23):

My understanding of undue influence, not altogether fashionable in the light of modern English decisions, is that it denotes an ascendancy by the stronger party over the weaker party such that the relevant transaction is not the free, voluntary and independent act of the weaker party ( Commercial Bank of Australia Ltd v. Amadio (1983) 151 CLR 447 at 461,474). In other words, it is the actual or presumed impairment of the judgment of the weaker party that is the critical element in the grant of relief on the ground of undue influence (See Peter Birks and Chin Nyuk Yin, On the Nature of Undue Influence, Ed. J. Beatson and D. Friedmann, "Good Faith and Fault in Contract Law" 57 et seq.). The list of the old relationships of influence from which undue influence was presumed supports this view: solicitor and client, doctor and patient, spiritual adviser and novice or parishioner, parent and child, guardian and ward and possibly express trustee and beneficiary (See Meagher, Gummow and Lehane, Equity, Doctrines and Remedies , 3rd edn (1992) § 1519). In these relationships, called class 2A relationships in Barclays Bank plc v. O'Brien ([1994] 1 AC 180 at 189), the weaker party, dependent on the stronger party, is not likely to bring to bear a free, voluntary and independent judgment to a transaction involving the parties to the relationship, whether it is a contract or a gift. Class 2A relationships are to be distinguished from class 2B cases where a de facto relationship of trust and confidence will raise a presumption of undue influence. (My emphasis).

62 Mrs Bridger submits that this is a case falling within the class of relationship described by Sir Anthony Mason as a class 2B relationship, where undue influence should be presumed from the fact that Ms Gardner occupied or assumed a position of ascendancy or influence towards the deceased; that the deceased depended and relied upon, as well as trusted, her; and that Ms Gardner benefited from the transaction.

63 If so, the onus will clearly lie on Ms Gardner to rebut the presumption because the circumstances in which the transfer came about were peculiarly within her knowledge. Where the presumption is not rebutted equity will intervene and set aside the transaction (Johnson v Buttress (1936) 56 CLR 113 per Latham CJ in 119-120; Dixon J at 134-135; Winefield v Clarke [2008] NSWSC 12 at [27] per Barrett J.

64 It is not necessary for there to have been an actual use of influence for the purpose of obtaining the benefit (ie that undue influence be proved as a fact). Rather, as Asprey JA in Whereat v Duff [1972] 2 NSWLR 147 said (at 167):

… where the relations between the donor and the donee have at, or shortly before, the making of the gift been such as to raise a rebuttable presumption that the donee had an undue influence over the donor. … the court sets aside the gift unless the donee rebuts the presumption. The court does not act on the ground that any wrongful act has been committed by the donee, but on the ground of public policy and to prevent the relations which existed between the parties and the influence arising therefrom being abused: Allcard v. Skinner (1887) 36 Ch D 145 at 171 (my emphasis)

65 In Johnson v Buttress Latham CJ said at 119:

Wherever the relation between donor and donee is such that the latter is in a position to exercise dominion over the former by reason of the trust and confidence reposed in the latter, the presumption of undue influence is raised. (footnotes omitted)

66 Mr Lawson submits that the starting point must be that Ms Gardner is entitled to the presumption of advancement by reason of the fact that the gift passed from her mother to her (Johnson v Johnson [2009] NSWSC 503). There is a rebuttable presumption that moneys paid from a parent to a child are advanced by way of gift (Nelson v Nelson (1995) 184 CLR 538).

67 While the presumption of advancement was not expressly pleaded, in my view it does not take the matter any further than the evidence would already establish – that a transfer to her daughter of the family home for the consideration of one dollar (when the home on any view was worth considerably more than that) must surely have been intended as a gift (in the absence of any suggestion that there was consideration advanced in some other form for the transfer). However, what the siblings challenge are the circumstances in which the intention to make that gift was produced.

68 It was submitted by Mr Lawson, and I accept, that since no medical evidence was offered by the siblings in this case the court must proceed on the basis that the deceased was fully possessed of her faculties when the transfer of the property was made on 12 August 2004. Nevertheless, there is ample evidence that the deceased was frail, in a deteriorating condition, elderly and had been in a position of dependence and reliance upon Ms Gardner for some years.

69 It is submitted by Mr Lawson that this is not a case in which a presumption of undue influence would arise because there was nothing to suggest that Ms Gardner exercised the kind of ascendency over the deceased to which Sir Anthony Mason had referred. It was said that the only evidence of particular instances of interaction between Ms Gardner and the deceased (in discussions over what was to happen to the family home) clearly showed that the deceased knew her own mind on such matters and that she would not subjugate her will to that of Ms Gardner.

70 I am of the view that in circumstances where Ms Gardner had been the primary carer of the deceased for some years; the deceased was elderly and frail; and the deceased depended for her daily care on Ms Gardner (even down to Ms Gardner making all phone calls on her behalf) the deceased’s contact with her other children (whether due to Ms Gardner’s manipulative or disruptive behaviour or otherwise) was limited, there was a clear relationship of dependence such as to give rise to a presumption of undue influence. The fact that the deceased felt able at times to state her own views or not to accede to Ms Gardner’s wishes does not in my view detract from the clear position of dependency. Further, the circumstances in which the deceased took steps immediately, it would seem, to “protect” her daughter from the reported schemes of her siblings (without attempting to ascertain whether there was any truth to this and in circumstances where it is not clear that there was any need for “protection” in any event) strengthens my conclusion that this was clearly a relationship of dependency such as to give rise to the presumption of undue influence.

71 Accordingly, as noted by Barrett J in Winefield v Clarke, the law requires that Ms Gardner positively justify the retention of the benefit conferred upon her. It matters not that the deceased being of sound mind may have intended to confer that benefit. The question is how the intention was produced. (Further, it matters not that Ms Gardner may have been deserving of just such a benefit, as is apparent from Winefield. There is a recognised policy underlying the intervention of equity where a benefit is received in circumstances of a presumption of undue influence which is not rebutted.)

(b) Was the presumption rebutted in this case?

72 In Allcard, it was said that once the facts are established from which the court will infer that a situation exists where undue influence may have been exerted, then the presumption arises. The onus then falls upon the donee to rebut the presumption by proving that “in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justifies the Court in holding that the gift was the result of a free exercise of the donor's will”. When undue influence is raised – one looks to the quality of the consent or assent by the weaker party (Deane J – Commercial Bank of Australia Limited v Amadio (1993) 151 CLR 447 at 474).

73 The fact that the deceased may have had and expressed the intention to transfer the family home to Ms Gardner (or for that matter that her mind was clear and she was lucid at the time) is not sufficient. The question is how that intention was produced. Thus in Huguenin v Baseley (1807) 14 Ves Jun Supp 273 at 299-300 it was said:

… where there is a claim by a living person that he has received a gift in the hands of a deceased person the court should carefully scrutinize the evidence to ascertain whether that the living donee puts forward is a probable and credible account of what really happened.

74 In Whereat, Asprey JA said (at 168-169):

75 In Poosathurai v Kanappa Chettiar (1919) LR 47 Ind App 1 it was said, “the person in a position to use his dominating power has the burden thrown upon him, and it is a heavy burden, of establishing affirmatively that no domination was practised so as to bring about the transaction, but that the grantor of the deed was scrupulously kept separately advised in the independence of a free agent”.

76 In Watkins v Combes (1922) 30 CLR 180 at 193-194, Isaacs J affirmed and adopted this statement.

77 In order to rebut the presumption of undue influence the fact that the donor or transferor has received independent, competent and sufficient legal advice is relevant (Johnson v Buttress; Stivactas v Michaletos(No 2) [1994] ANZ ConvR 252). In this regard, the question is whether the advice that was given was sufficient to operate as “an antidote” to the invalidating presumption arising in the context of the doctrine of undue influence to paraphrase the words of Brereton J in Riz v Perpetual Trustee Australia Limited [2007] NSWSC 1153 at [116]. There, his Honour reviewed the authorities on independent competent and sufficient advice and noted that it was insufficient to ensure that the client comprehends the contents nature and effect of the relevant documentation but the legal adviser must give advice as to the propriety of the transaction (see the discussion in paras [116]-[128]).

78 In Stivactas v Michelatos (No 2) [1994] ANZ ConvR 252; (1993) Aust Contract R 90-031; (1993) NSW ConvR 55-683, the Court of Appeal affirmed the setting aside by Waddell CJ in Eq of an improvident transfer of property from an elderly aunt to her nephew, where it was not satisfied (in the absence of proof of adequate independent advice) that the transfer was the product of her fully formed intention and not the influence of her nephew.

79 Kirby P, as his Honour then was, noted that while a relationship of dependency/ascendancy was established, the law casts an onus upon the person in the ascendancy to establish affirmatively that the disputed transaction arose from the free will and informed exercise of judgment by the dependent person. His Honour said:

The provision of independent advice is certainly an important ingredient in rebutting a presumption of undue influence although it is not essential.

See Inche Noriah v Shaik Allie Bin Omar [1929] AC 127 (PC); Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573 (SC) 577.

However, where advice is given, it must be both independent and effective for the purpose of enlivening the client’s appreciation of the transaction, its legal effects and the alternatives (if any) which are open to the client. See Bester v Perpetual Trustee Co Limited [1970] 3 NSWR 30 (SC), 36.

80 In Stivactas, Kirby P, also noting that if the transaction was the product of a fully informed mind then keeping it secret was something unlikely to happen, referred to the need sufficiently to draw to the client’s attention the comparative advantages of alternative courses which were open to the client.

81 In the present case, for example, advice that a transaction of this kind might be set aside as notional estate would not seem to me adequately to draw to the deceased’s attention to the cost consequences for the estate (and, indeed for the very daughter whose rights of occupation she was seemingly anxious to protect) of a challenge of this kind. That is not to say that I think Mr Richardson should have advised the deceased not to enter into the transaction per se, but advice as to what might flow from that transaction (particularly where he was already on notice of family concerns) might have been expected.

82 It is submitted by Mrs Bridger that Mr Richardson did not provide the deceased with any proper or any advice as to the improvident nature of the transaction she was making; gave no advice as to the effect of the transaction and how it might have an impact on her pension; gave no advice as to how the transfer of the property placed her in a very vulnerable situation and possibility at a disadvantage viz-a-viz Ms Gardner. It is submitted that the deceased was not advised that the terms of her will (which under the codicil she confirmed), effectively gave the property already to Ms Gardner. It was not suggested to the deceased that she seek independent legal and financial advice or that she was given advice as to the advantages and disadvantages of the transaction or any alternative to the transaction.

83 With all due respect to Mr Richardson, I think there is force in this submission. The advice he says that he gave to the deceased was as to the possibility that the transfer might be able to be designated as notional estate (though he does not explain precisely what was said to the deceased in that regard). He advised that a check should be made with Centrelink as to any effect on the deceased’s pension, but there is no evidence that he did anything other than accept what he was told by Ms Gardner in that regard. There is no suggestion that he explored the alternatives the deceased may have had or explained the vulnerability of her position once the transfer was effected (she then having no legal right of occupation in relation to her home).

84 It is submitted by Mrs Bridger that the transaction was kept secret from other members of the family. Certainly, Ms Gardner concedes that this was not disclosed and said that was her mother’s decision. While I think little weight can be placed on this factor in terms of the undue influence claim, it does form part of the overall context in which the advice by Mr Richardson must be viewed (particularly since he was on notice of concerns in relation to undue influence prior to the transaction being effected and apparently chose not to raise them with the deceased in order to ascertain her response and, if appropriate, for her to discuss matters within the family in relation to the proposed transfer).

85 It was submitted by Mr Lawson that there was sufficient evidence to rebut any presumption of undue influence, that being the evidence of Mr Richardson that he received clear and unambiguous instructions that he was to transfer the home to Ms Gardner; there was no medical evidence to call into question the deceased’s capacity to form an intention to gift the home to the deceased and that the deceased had the benefit of truly independent legal advice on the matter before she made the gift. Reference was made to what was said in Johnson v Buttress by Latham CJ (at 120):

But evidence that such advice [competent, independent advice] has been given is one means, and the most obvious means, of helping to establish that the gift was the result of the free exercise of independent will.

86 As to the first two matters, they go to the question of soundness of mind and capacity, not as to the question of any undue influence. As to the stated benefit of the legal advice received, that begs the very question I am considering. Insofar as it is submitted that Mr Richardson’s evidence was that he was very conscious that he was acting for the deceased in the transfer of the property and had explained the nature and effect of the transfer to her and was satisfied that the deceased knew what she wanted and that he was directed to transfer the property to the defendant in accordance with the deceased’s express wishes, I remain concerned that Mr Richardson was considering matters relevant to testamentary capacity, not necessarily determinative of whether there was a position of presumed undue influence.

87 I do not regard the fact that, having satisfied himself that he was not in a position of conflict of interest, there is any necessary criticism to be made of Mr Richardson because he acted for both parties on the conveyance. I think it would not have been necessary, for example, for Mr Richardson once he received instructions in relation to the transfer to have advised Ms Gardner or the deceased that one or other should incur the cost of separate representation on the transfer. However, once Mr Richardson was aware of the proposed transfer (clearly improvident on its face) that made more stark the need for careful advice as to the propriety of the transaction to be given. Simply asking the deceased (out of earshot of the transferee) whether she was absolutely sure that she wanted to transfer the home to Ms Gardner is not in my view sufficient.

88 Applying the test outlined by Kirby P, here there is no evidence that Mr Richardson explained the alternatives open to the deceased – in particular, that the provisions of the existing will (which the deceased was at the same time she signed the transfer the property, relevantly confirming), gave to Ms Gardner a lifetime right to occupation of the property and hence that her daughter already had a measure of protection against the threat of homelessness. Nor is there evidence that Mr Richardson explored with the deceased the reason for seeking advice from a different solicitor so soon after apparently having given instructions to the solicitor who had drafted her 2003 will. Although Mr Richardson took instructions directly from the deceased (in the absence of Ms Gardner) he also took some instructions from Ms Gardner or in her presence in relation to the will and the transfer. There is no evidence that Mr Richardson conveyed to the deceased the concern which had been conveyed to him by Mr Gardner as to Ms Gardner’s influence over her mother, or sought to test that concern himself. There is no evidence that Mr Richardson drew to the deceased’s attention the potential impact of the transaction on the deceased’s pension, a matter on which Mr Richardson seems to have relied wholly on Ms Gardner’s instructions.

89 Ms Gardner (presumably of necessity, since her mother apparently made no telephone calls herself during this period) was the moving force in arranging for Mr Richardson’s at the house, and seemingly the source of at least some of the information (incorrectly as it turns out) included in the statutory declaration and on which Mr Richardson relied. Mr Richardson was clearly on notice (by Mr Gardner’s call) of the potential for dispute within the family (and had drawn Ms Gardner’s and the deceased’s attention to the possibility of a challenge to the transfer).

90 Ms Gardner had also expressed some urgency in relation to the matter (for reasons not explained by her and not apparent to me).

91 I am left with real doubt that the transfer was the product of a fully informed mind on the part of the deceased. The fact that the deceased and Ms Gardner kept this quiet from those other members of the family with whom the deceased was in contact is a factor on which I place little weight though one which might tend to confirm the conclusion I would in any event have drawn – namely that the transaction was the product of a relationship of dependency by the deceased on Ms Gardner.

92 I find it significant that the transaction occurred shortly after Ms Gardner seems to have formed the view (rightly or wrongly) that her siblings were proposing to throw her out of the house after their mother’s death and to have communicated this to the deceased. It seems to me that the likely explanation for the deceased’s change of mind (from wanting to give her daughter a lifetime right of occupation of the family home and either after her death for any residue to be shared equally between her remaining children or, if sold before Ms Gardner’s death, for provision to be made for a legacy to the children) to a decision to transfer the house outright and thereby effectively make no provision whatsoever for any of her other children, was the communication of a concern by Ms Gardner as to what her siblings might do. That, and the haste with which the transaction was sought to be implemented, makes me doubt it was the product of a fully informed mind on the part of the deceased.

93 It was suggested by Counsel for the siblings (Mrs Bridger) that Ms Gardner had misinformed the deceased in early 2004 about the alleged intentions of her siblings, that this was untruthful (to Ms Gardner’s knowledge) and that it was designed to mislead the deceased. It was submitted by Mrs Bridger that Ms Gardner was in the unique position to place corroborative evidence (though it is not said what that might have been) about the alleged meeting before the court and had elected not to do so. Hence the court, it was said, was entitled to draw the inference that the evidence would not have assisted her. I think it is not necessary to draw such an inference in order to reach the conclusion I have reached above.

94 I note that in Johnson v Buttress, Latham CJ observed (at 120) that in the case of an illiterate or weak minded person it will be more difficult for the donee to discharge the onus of proof. Here, although it was said (and I would accept) that the deceased was anxious not to provoke any confrontation with Ms Gardner, I accept she was still able to assert her own wishes and therefore I do not consider that the deceased’s inexperience makes it more difficult for Ms Gardner to satisfy the onus of proof. However, Latham CJ went on to say that the burden will be still heavier upon the donee where the donor has given him all or practically all his property. Dixon J noted in that case the policy reasons which supplied a firm foundation for the presumption.

95 In Watkins v Combes, the majority found it impossible to treat the advice there given by the solicitor as independent within the meaning of the rule (there stating that a disposition of property made while the relationship of dominion existed and without the benefit of independent advice could not stand). The solicitor in question had acted for both parties in the transaction and the transferees were present throughout his interview with the transferor. Their Honours noted that although he had discussed the matter with the transferor and had given her certain advice with regard to the form of the documents, this was not “independent” advice. The solicitor in that case had suggested to her the appointment of a trustee, but proceeded to carry out the transaction when she refused to accept that advice.

96 Isaacs J had no doubt (at 192-193) that the transferor “at the moment she put her hand to the deed in question, understood in a general way that she was giving her property to the appellants [and that they in return undertook certain things]. But that leaves entirely open the question of whether she sufficiently understood the transaction, so as to be aware of the value of what she gave and the value of what she was getting in return, and the further question of whether she was led to execute the deed by the “undue influence” of the appellant”.

97 Here the deceased was physically reliant on Ms Gardner. She was in a wheelchair and did not leave the house on her own. Mr Richardson’s assessment that the deceased understood what she was doing seemed to be formed solely on the basis that she appeared lucid and that she confirmed to him that this was what she wanted to do. That is not sufficient in my view to remove the presumption of undue influence.

98 I find the presumption not rebutted.

(c) Fiduciary Duties

99 Apart from her position as holder of the Power of Attorney/Enduring Guardianship, which Ms Gardner accepts would impose fiduciary duties on her, and acted as her agent in carrying out banking or financial transactions, which for the reasons I considered in Barkley v Barkley-Brown [2009] NSWSC 76 would import a fiduciary obligation, the only fiduciary obligations which would be imposed on Ms Gardner would arise from the position of ascendancy occupied by her and therefore it does not seem to me to take the matter any further than the undue influence claim.

100 That fiduciary obligations of a kind may arise in circumstances where there is a relationship of ascendancy / dependency was recognised by Dixon J in Johnson v Buttress (at 134-135), stating that the doctrine of undue influence:

… which throws upon the recipient the burden of justifying the transaction is confined to no fixed category. It rests upon a principle. It applies whenever one party occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependence or trust on his part. One occupying such a position falls under a duty in which fiduciary characteristics may be seen. It is his duty to use his position of influence in the interest of no one but the man who is governed by his judgment, gives him his dependence and entrusts him with his welfare.

101 There are many different types of fiduciary relationships and the obligations arising thereunder differ accordingly. This issue was addressed by Gibbs CJ in Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 at 69, where his Honour said:

In re Coomber; Coomber v. Coomber

Jenyns v. Public Curator (Q.)

Phipps v. Boardman

138 Mrs Bridger concedes that the assets listed in the balance statement are at cost. However, she submits that the partnership’s balance sheet, which was tendered during the course of Mrs Brooks’ cross-examination, discloses that for the year ended 30 June 2008 the liabilities of the partnership exceeded its assets by $354,215.17.

139 Mrs Bridger pointed to the vehicles and other assets disclosed in the partnership balance sheet (in particular the evidence emerging from the depreciation schedule) to submit that the value of these assets is likely to be less than their acquisition cost and that on sale there would be insufficient moneys raised to pay out the loans still outstanding on those assets. It is submitted that a perusal of the depreciation schedule for the plant and equipment indicates that some is more than 10 years old. The partnership as at 30 June 2008 owed the Australian Tax Office $32,123.36 and trade creditors $66,370.13. It is submitted that the partnership is scarcely viable and would have no value.

140 Mrs Bridger also points to the profit and loss statement to show that the second largest expense for the partnership is bank interest; that the business is disclosed in the accounts as having no goodwill and that the profit it makes is not huge. For all practical purposes, it is submitted that the court would be entitled to infer on the evidence that the business has no value.

Mrs Evans

141 Mrs Evans, is married and 61 years of age. She and her husband have been living in the same Department of Housing accommodation for the last 24 years, and apart from a second-hand vehicle purchased by her husband for about $5,000 in April 2009, the only other asset of Mrs Evans and her husband or either of them is a second-hand vehicle purchased approximately 10 years ago.

142 Mr Lawson notes that Mrs Evans has not put any financial information before the Court that would allow the Court to make an award under section 7 (again relying on Collings v Vakas at [67]). In particular, it is said that Mrs Evans has not provided a list of assets and liabilities and has not provided to the Court a list of household income and expenses.

143 It is submitted by Mrs Bridger that the court would accept Mrs Evans evidence that she has not asked her husband for information as to his financial circumstances, although she could have, because "He would not have agreed" and "I haven't asked him because I know he wouldn't agree. I know him." (T 246.10-15). Mrs Evans’ husband is employed by the local council "cleaning toilets".

144 Mrs Evans’ evidence was that her husband handled all money and expenses and gave her a modest weekly amount for housekeeping. Whilst it is conceded by Mrs Bridger that a subpoena to produce documents could have been issued to Mrs Evans’ husband, there was a suggestion that any such action might well have caused marital disharmony – the factual basis for which emerges in my view from Mrs Evans’ affidavit in which she refers to problems in relation to drinking and gambling.

145 In view of the extremely modest asset position of Mrs Evans and her accommodation for the last 24 years as well as the nature of her husband's employment, it is submitted it is highly unlikely that he would be earning more than the basic wage. I agree. Mrs Evans’ evidence, it was said, also supports a finding that she struggles financially. She shops at second-hand stores, has a small account with a credit limit of approximately $500 at a local shop which she uses where she purchases clothes and household goods on credit, and then pays them off at the rate of $15 per week.

146 It is submitted that Mrs Evans is scarcely doing better than hand to mouth. I agree. (I note in this regard that Ms Gardner’s financial position may now be little if any better, her only asset having been the family home.) In my view, despite the scarcity of the evidence, the information before me enables me to form a view as to the overall picture, in broad terms of Mrs Evans’ financial opposition and having regard to Collingsv Vakas, this is sufficient.

Mrs Bingham

147 Mrs Bingham, is 63 years old and divorced. She lives in rented accommodation. Her income comprises a widow's pension of $558 per fortnight. Her average fortnightly expenses are $543. Her assets are set out in paragraphs 2 and 3 of her affidavit sworn 25 March 2008. Though Mrs Lawson notes that she has a relatively new model car valued at $12,000, her financial position is by no means comfortable.

· Relationship between deceased and applicants

148 The siblings contend that each of them had, as far as their respective circumstances permitted and (subject to the impact of what was alleged to have been conduct by Ms Gardner over a number of years which was disruptive to that relationship) a close and loving relationship with the deceased. Mrs Brooks (who lived in Tumut) and Mrs Lipscombe (who lived near to the deceased in Ulladulla) maintained regular contact with the deceased up until her death. Mrs Hewitt, Mrs Evans and Mrs Hart had regular contact with the deceased until approximately 2004 (and blame their break in contact at that stage on the alleged conduct of Ms Gardner not least in the altercation to which I referred earlier). Mr Gardner, who lives in Queensland, maintained contact with the deceased mainly over the telephone but visited occasionally. Mrs Bingham said that she maintained regular contact with the deceased until approximately 1969. After that she had no contact with the deceased. It is said again that this was brought about by the conduct of Ms Gardner.

149 For her part, Ms Gardner maintains that her siblings did nothing to care for their mother in the last years of her life and denies that she precipitated any breakdown in their relationships with their mother.

150 It is accepted that the relationship between each of the applicants and the deceased is a relevant factor in determining whether proper provision was made for each of them by the deceased. It is submitted by Mrs Bridger that none of the siblings repudiated their relationship with their mother. Nevertheless, in the case of Mrs Bingham, she has not seen or had any contact with the deceased since 1969; in the case of Mrs Hart, she has had no contact with her mother since 2002/2004; and in the case of Mrs Hewitt and Mrs Evans, they too had ceased regular contact with their mother in the last couple of years of her life.

151 It is submitted by Mrs Bridger that none of the siblings regarded his or her relationship with the deceased at an end. Brereton J in McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484 at [39]-[42] noted that the circumstances of an estrangement or separation may diminish the extent of a child’s moral claim to provision out of the estate and may be taken into consideration at both stages of the test in Singer. Nevertheless, the issue remains whether in all the circumstances the community would have expected the testatrix to make a greater provision for the applicant than she has done. I have referred earlier to the comments of Young J in Walker v Walker (approved by Ipp JA in Palmer v Dolman, Dolman v Palmer [2005] NSWCA 361 at [112]) in that regard.

152 It is clear that each of the siblings, and particularly Mrs Hart, Mrs Hewitt, Mrs Evans and Mrs Bingham, blame the loss of or diminution in their contact with the deceased on Ms Gardner’s interference and conduct towards them. It is submitted that efforts made by them to remain in contact with the deceased were thwarted or not encouraged by Ms Gardner, at a time when the deceased was emotionally and physically dependent upon the Defendant who was her carer. Their reaction to that conduct, it was said, was not unreasonable. It is submitted by Mrs Bridger that the contact between each sibling and the deceased was not behaviour that would extinguish any obligation of the deceased to make proper provision for each of them and should not be a decisive factor in the case.

153 I note that there is evidence from Ms Gardner which suggests that the deceased was aware of the difficulties in the relationship between her and the siblings and in which her mother offered to act as a peace-maker, in effect (an offer that Ms Gardner did not take up). This seems to me to be consistent with the picture which emerged of the deceased from the siblings’ affidavits, as someone who did not wish there to be family confrontation. Insofar as it is possible to form view as to the deceased based on the evidence before me, it is not my impression that the deceased regarded her children as having cut themselves off from her – albeit that she no doubt would have wished to have more contact with them.

154 I also have formed the view that even if Ms Gardner was not the principal cause of disruption within the family (and she may well have been) she did nothing to breach the rifts even though she must have been aware from the comments made in the statutory declaration if nothing else that her mother would have wished this to happen. I have had regard not only to the evidence as to the altercations between the various siblings but to the fact that even when her mother was dying Ms Gardner was not able to bring herself to notify her siblings. In my view had it been necessary to do so I would have found that the cause of the rifts between the siblings and hence their separation from their mother in the last years of her life was more likely than not to have been largely the conduct of Ms Gardner.

· Relationship between the deceased and Ms Gardner

155 The relationship between the deceased and Ms Gardner is also relevant. Ms Gardner lived with the deceased from 1988 to her death and, from 1994, was in receipt of a carer’s pension. Ms Gardner asserted that she paid rent and contributed to the upkeep of her mother’s house.

156 Mrs Bridger submits that from 1988 Ms Gardner was in a position where she received ample and compensatory benefit from the deceased in terms of accommodation for her care of the deceased. It is submitted by Mrs Bridger that since the deceased's death Ms Gardner has had the benefit of living in the property and that there was not, and could not have been, any obligation on the deceased to provide a home to Ms Gardner in priority to the claims of the deceased’s children who were in very modest circumstances (especially Mrs Evans, Mrs Lipscombe and Mrs Bingham). In this regard, I do not think that the benefit that Ms Gardner has obtained from living in the house since 1985 should be seen as “ample” or sufficient compensation for the services and companionship she provided to her mother, so as to warrant a conclusion that her mother would not have been expected in the community’s eyes to make provision for her after her death.

157 It is said that the community does not expect a parent, in ordinary circumstances, to provide an unencumbered house to one of his or her children and exclude all other children who are no less or more deserving of testamentary recognition. Where there are sufficient assets available the community may expect a parent to provide a buffer for an adult child's future contingencies but only to the extent to which the available assets permit. That may be so, but that turns on a comparison of the competing claims for testamentary recognition.

158 There was evidence that the deceased wanted all of her children ultimately to share equally in her estate. Reliance was placed on the instructions said to have been given to Mr Ryan on 7 July 2004, and the expressions of testamentary intention to various of the siblings over a period of years, as well as the inference to be drawn from Ms Gardner’s evidence at (T 376.10) that at least at some time before her death this had been the deceased’s intention.

159 The deceased's earlier expressed testamentary intentions are said to be logical when one considers the circumstances in which the deceased's property was acquired in 1956. Each of the siblings, with the exception of Mrs Hewitt, made a financial contribution to the acquisition of the property (as did Ms Gardner) and gave up any equitable interest each of them might have had in the property by disclaiming any interest in the compensation monies used to purchase it (Exhibit L) although the extent of the contribution is unknown.

160 Nevertheless, I consider that the evidence makes it very clear that from as far back as 1995 the deceased regarded it as important to make provision for Ms Gardner’s future accommodation. The fact that the deceased had had regard (according to the notes taken by Mr Richardson) to the fact that each of her other children had their own homes and was well, indicates to me the factors that the deceased had considered important to take into account.

161 I accept that insofar as Ms Gardner alleged the deceased wanted to "protect her" (from being “thrown out” of the house by her siblings) she was in fact already protected under the terms of the will in having a right of accommodation for as long as she wanted it. However, what now seems to be put is that the deceased should not have made such provision if to do so would leave the deceased unable to make some provision for her other children.

· Conclusion on first stage

162 Under the 2003 will read with the 2004 codicil, Ms Gardner is entitled to a lifetime right of residence in the family home and, only on its sale which cannot be without her consent or on her death, can the pecuniary legacies of $2,000 be paid to each of the siblings. As I understand the submissions the reality is that whatever the decision in these proceedings it is likely that the family home will have to be sold. Determining the adequacy of the provision made for each of the siblings as at today’s date, therefore, I must take into account the fact that the estate is likely to be very small. I also take into account the following matters: each of the siblings are in a position of financial need but of those Mrs Lipscombe, Mrs Evans and Mrs Bingham (each of whom has limited income and lives in rental accommodation, with little in the way of assets or savings) are particularly acute; each of the siblings maintained or attempted to maintain contact with their mother over most of their lives (with the exception of Mrs Bingham who had not maintained direct contact since 1969) as far as they were able to do so consistent with other family demands and with their personal circumstances; the disruption to the relationship of the siblings with their mother was, if not caused, then at least significantly contributed to by Ms Gardner; but that for her part Ms Gardner devoted a considerable period of her life to caring for her mother and was regarded by her mother as a close companion.

163 Having regard to the respective financial positions of the applicants, the level of their respective contact with their mother (whether due to Ms Gardner’s interference or otherwise) I am of the view that the provision made for Mrs Lipscombe, Mrs Evans and Mrs Bingham was inadequate for their proper maintenance, education and advancement in life. Even though Mrs Bingham had not been in contact with her mother for a considerable period, I consider that had her mother been aware of the financial circumstances in which Mrs Bingham presently is her mother would have wished to make (and the community expectation would be that she would make) some provision for Mrs Bingham beyond the $2,000 legacy provided.

164 As to Mrs Hewitt and Mr Gardner, their asset positions are relatively comfortable compared to that of Ms Gardner and the three earlier mentioned siblings. Therefore, I would have concluded that the provision out of the estate of the small bequest would have been adequate. I am influenced in that regard by the small size of the likely distributable estate and the fact that it would not have been possible for the deceased to make equal provision for all of her children in any meaningful way.

165 As to Mrs Hart, while her health is not good, she has net assets and savings of sufficient value to warrant a similar conclusion to that of Mr Gardner and Mrs Hewitt.

166 As to Mrs Brooks, I consider on balance the provision to be adequate. I am concerned that the evidence in relation to the partnership’s financial position is not complete. Having regard to the partnership’s borrowings and the fact that she and her husband have been in a position to draw a net income from the partnership and to meet personal expenses from the business, I am satisfied that the provision under the will, though small, is not inadequate in the circumstances.

c) What provision would be adequate for Mrs Lipscombe, Mrs Evans and Mrs Bingham?

167 The second stage, which involves the exercise of discretion, is for the court to assess the proper level of maintenance and adequate provision which should be made. The factors to be taken into account in making such a determination are contributions to the property and welfare of the deceased; the character and conduct of the applicant in relation to the deceased; and the circumstances before and after the death of the deceased (including the extent of the claims of other persons on the estate of the deceased). Some of those matters have already been considered.

· Contributions to property

168 Mr Lawson accepts that, by disclaiming or waiving any entitlements in relation to the compensation money, the siblings (other than Mrs Hewitt) did make a contribution (albeit one which cannot be precisely quantified) to the acquisition of the property. Mrs Brooks has also made a contribution in terms of the installation at no cost of a kitchen and barbecue.

· Relationship to deceased

169 I have considered this above. Mrs Lipscombe was expressly mentioned in the statutory declaration as having maintained contact with the deceased and there is nothing to suggest she had other than a close relationship with the deceased. Mrs Evans similarly kept in contact with her mother until the unfortunate incidents in 2003/4 involving Ms Gardner. Mrs Bingham’s position is more difficult because it would seem Mrs Bingham chose not to make contact with her mother for a considerable period (and from before Ms Gardner was living with her mother). However, while I consider this factor may merit a lesser provision I think it does not disentitle Mrs Bingham.

· Character and conduct of applicants

170 I do not consider there is anything in the character and conduct of the three siblings whose claims fall for consideration at this point which adds to what I have already said. It was not submitted that there was any disentitling conduct on the applicants in the sense in which that expression is used in the Family Provision Act context.

· Circumstances before and after death (including other competing claims on the estate)

171 I have considered the circumstances leading up to the deceased’s death. The most difficult factor in the exercise of my discretion in this regard is the competing claim of Ms Gardner to the interest provided for her by her mother. The deceased clearly placed importance on Ms Gardner having security of accommodation. Ms Gardner’s own financial circumstances are not affluent. She is in receipt of a disability pension of $550 per fortnight and has estimated her living expenses at around $400 per fortnight. While she is engaged, she has put forward no information (and says she does not know) as to the financial position of her fiancé. Ms Gardner was adamant that she and her fiancé were just good friends, by which I understood her to mean that she is not in a position to expect him to support her financially. She does not think it likely that they will marry for at least a decade (as this must apparently be deferred while his aged parents are alive). Ms Gardner’s lifestyle might also be described as living hand to mouth.

172 Whatever the criticisms made as to the way in which she provided care to her mother (and as to her exclusion of her siblings from the opportunity to do so), the bulk of the caring for the deceased fell upon Ms Gardner who lived with her mother for some twenty years before her death (and who I note paid for her mother’s funeral expenses out of her own funeral expense plan without contribution from the siblings). It is submitted that any order for provision will be nugatory and will be eaten up entirely by costs and even if not there must be a provision for Ms Gardner, by reason of her paramount financial needs. I agree that in the circumstances the bulk of the estate (whatever it may be) should go to Ms Gardner. However I am not satisfied that it is the case (as submitted by Mr Lawson) that no provision ordered in favour of the plaintiffs or any combination of them, could possibly make much difference to their financial position and hence that any such order in those circumstances would be futile.

173 While it is unlikely that there will be much, if anything, available out of the estate of the deceased for distribution, the claims made for provision out of the estate were relatively modest. Mrs Bingham, for example, sought a sum of money which would be able to meet her own funeral expenses in order not to be a burden on her own children.

174 In my view the adequate provision would have been for each of Mrs Lipscombe, Mrs Evans and Mrs Bingham to have an increased pecuniary legacy out of the estate, and for Ms Gardner to have the balance of the estate, subject to the pecuniary legacies payable under the will on the sale of the house to be sold. As I am not satisfied that an accurate figure has yet been placed on the value of the home, and the costs payable out of the estate or otherwise have not yet been determined, I consider that rather than specifying a monetary amount the appropriate provision would be for each of Mrs Lipscombe and Mrs Evans to have a pecuniary legacy equivalent to 10% of the net distributable value of the estate after costs have been taken into account; for Mrs Bingham to have a pecuniary legacy equivalent to 5% of the net distributable value of the estate after costs have been taken into account; and for Ms Gardner to have a pecuniary legacy equivalent to 75% of the net distributable value of the estate after costs have been taken into account, those legacies to be payable rateably out of the proceeds of sale of the family home and there be a direction that the family home be sold as soon as practicable (with a trustee for sale appointed if that be necessary). I would make the proviso that in the (probably unlikely) event that the net distributable estate exceeds $220,000 then each of the remaining siblings should be paid the pecuniary legacy provided for them under the will (before the four main legacies are calculated).

175 As there is to be debate as to costs I do not propose to make formal orders at this time. It may be that the outcome of costs has to be taken into account in some way in the orders for the provision to be made under the Act.

176 I will therefore hear submissions as to the form of orders and as to costs. In this regard I note that Mr Lawson has submitted that Ms Gardner’s costs include the costs of preparing a defence based upon an application to set aside the will dated 17 March 2003 and the codicil dated 12 August 2004, which claims were abandoned at hearing, as well as the costs of preparing the claim based upon an assertion that the inter vivos transfer should be set aside when there was no standing to do this up until the court made orders that Mrs Hewitt could represent the estate for the purposes of that application on the second or third day of the trial. However it may be that there are further or other submissions to be made and if so a date should be fixed for that to occur.

Relief

177 On the undue influence claim I propose to declare that the defendant holds her registered interest in the property at 60 Princes Highway Ulladulla (Folio Identifier 1/530942) on trust for the estate of the late Essie Lila Lipscombe. I consider it would be appropriate to order that the defendant re-convey the property to Mrs Hewitt who was appointed as authorised representative of the estate for the purposes of maintaining these proceedings, to be held by her on behalf of her late mother’s estate and dealt with in accordance with the 2003 will and 2004 codicil, if that be admitted to probate, and subject to my conclusions in relation to the Family Provision Act claims. I will hear submissions in relation thereto.

178 In relation to the Family Provision Act claims I am satisfied that the 2003 will (which is the only will in evidence before me) as amended by the 2004 codicil, made inadequate provision for the maintenance, education and advancement in life of Mrs Evans, Mrs Lipscombe and Mrs Bingham. I am of the view that provision should be made for each of those applicants out of the estate of the late Essie Lila Lipscombe in the manner outlined in my reasons for judgment above.

179 The life time right of occupation of Ms Gardner under the will is to be subject to the satisfaction of the said legacies. In the result, this would mean (leaving aside for the moment the question of costs) that if there are insufficient assets in the estate to satisfy the pecuniary legacies (and Ms Gardner is unable to do so out of her own funds) then the family home would have to be sold and that means that in accordance with the will the remaining siblings would share in any proceeds of sale after payment out of the specific legacies.

180 However, in circumstances where the legal costs are likely to consume most, if not all, of the estate, I am minded (once the question of costs has been determined) to make orders for the provision out of the assets of the estates for the successful applicants on a pro rata basis with the provision available for Ms Gardner out of those proceeds. I will hear submissions as to the final relief to be granted in this regard.

**********

CITATION:	Hewitt v Gardner; Hewitt v Gardner [2009] NSWSC 1107
HEARING DATE(S):	13, 14, 15 and 29 July 2009
JUDGMENT DATE :	16 October 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Ward J
DECISION:	In 2693/07 Orders for provision made in respect of three of the plaintiffs. In 2046/08 Declare that the defendant holds property on trust for the estate. Order property to be reconveyed.
CATCHWORDS:	EQUITY - general principles - undue influence and duress - deceased transferred home to defendant for consideration of one dollar - defendant the daughter and primary carer for deceased - whether relationship between deceased and defendant gave rise to presumption of undue influence - whether presumption rebutted - held that relationship gave rise to presumption of undue influence - presumption not rebutted - SUCCESSION - family provision and maintenance - deceased left will and codicil giving lifetime occupation right and residue of estate to one of eight adult children - claims for provision made by remaining seven children - whether inadequate provision made for some or all plaintiffs - held that inadequate provision made for three of plaintiffs - relief granted
LEGISLATION CITED:	Family Provision Act 1982 Uniform Civil Procedure Rules Real Property Act 1900
CATEGORY:	Principal judgment
CASES CITED:	Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 23 Barkley v Barkley-Brown [2009] NSWSC 76 Blomley v Ryan (1956) 99 CLR 362 Breen v Williams (1995-6) 186 CLR 71 Bridgewater v Leahy (1998) 194 CLR 457 Collings v Vakas [2006] NSWSC 393 Commercial Bank of Australia Limited v Amadio (1993) 151 CLR 447 Hewitt v Gardner; Hewitt & Gardner [2009] NSWSC 705 Hospital Products Ltd v United Surgical Corporation (1984) 156 CLR 41 Huguenin v Baseley (1807) 14 Ves Jun Supp 273 Johnson v Buttress (1936) 56 CLR 113 Johnson v Johnson [2009] NSWSC 503 Louth v Diprose (1992) 175 CLR 61 McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484 Morrison v Coast Finance Limited (1965) 55 DLR (2d) 6710 Nelson v Nelson (1995) 184 CLR 538 Palmer v Dolman, Dolman v Palmer [2005] NSWCA 361 Poosathurai v Kanappa Chettiar (1919) LR 47 Ind App 1 Re Birtchnell (1929) 42 CLR 384 Riz v Perpetual Trustee Australia Limited [2007] NSWSC 1153 Singer v Berghouse (No 2) (1994) 181 CLR 201 Stivactas v Michaletos (No 2) [1994] ANZ ConvR 252 Turner v Windever [2003] NSWSC 1147 Vigolo v Bostin (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Watkins v Combes (1922) 30 CLR 180 Whereat v Duff [1972] 2 NSWLR 147 Winefield v Clarke [2008] NSWSC 12
TEXTS CITED:	Anglo-American Law Review 1998
PARTIES:	Nita May Hewitt (First Plaintiff in both matters) Ronald Malcolm Gardner (Second Plaintiff in both matters) Nancy Ellen Hart (Third Plaintiff in both matters) Margaret Patricia Lipscome (Fourth Plaintiff in both matters) Jennifer Mary Bingham (Fifth Plaintiff in both matters) Shirley Ann Evans (Sixth Plaintiff in both matters) Pam Louise Brooks (Seventh Plaintiff in both matters) Lysle Brooks (Eighth Plaintiff in 2046 of 2008) Joy Lynette Gardner (Defendant in both matters)
FILE NUMBER(S):	SC 2693/07; 2406/08
COUNSEL:	M Bridger (Plaintiffs) M Lawson (Defendant)
SOLICITORS:	John Moon (Plaintiffs) R&M Legal (Defendant)