Mollross v Post - [1992] TASSC 133

Serial No B56/1992
List "B"

COURT: SUPREME COURT OF TASMANIA

CITATION: Mollross v Post [1992] TASSC 133; B56/1992

PARTIES:  MOLLROSS, Marjorie Doris
  v
  POST, Rodney John
  POST, Stephen Michael

FILE NO/S:  295/1991
DELIVERED ON:  23 December 1992
HEARING DATE:  2 – 4, 7 – 11, 15 December 1992
JUDGMENT OF:  Zeeman J

CATCHWORDS:

Mistake — Effect on contracts generally — Defence of non est factum — Transfer of land registered under the Land Titles Act 1980.
Equity — Equitable doctrines and presumptions — Unconscionable conduct — Undue influence — Gift of house.

Louth v Diprose (HC, unreported 2 December 1992); Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; Johnson v Buttress (1936) 56 CLR 113; Re P's Bill of Costs (1982) 45 ALR 513, followed.

REPRESENTATION:

Counsel:
             Plaintiff:  H J Kable
             Defendant:  C P R Hill
Solicitors:
             Plaintiff:  Dobson Mitchell & Allport
             Defendant:  Stephen Chopping

Judgment Number: B56/1992
Number of paragraphs: 76

Serial No B56/1992
List "B"
File No 295/1991

MARJORIE DORIS MOLLROSS (BY HER NEXT FRIEND THE CROWN SOLICITOR) v RODNEY JOHN POST and STEPHEN MICHAEL POST

REASONS FOR JUDGMENT ZEEMAN J

23 December 1992

At all relevant times until 21 November 1990, the plaintiff was the registered proprietor of an estate in fee simple in land situate at 8 Jutland Street, New Town, the same being comprised and described in folio of the Register volume 3091 folio 39. The plaintiff had occupied the house erected upon that land as her residence for many years. On 26 October 1990 she executed a Memorandum of Transfer to effect a transfer of her estate in the land to the defendants. The consideration for that transfer was expressed therein as being the natural love and affection which the plaintiff bore for the defendants. That transfer was registered on 21 November 1990 and since that date the defendants have been the registered proprietors of an estate in fee simple in the land as tenants in common in equal shares.

By this action the plaintiff seeks a declaration that the defendants hold their estate in the land upon trust for the plaintiff and consequential relief. The plaintiff's Statement of Claim asserts that at the time she executed the transfer she did not know what she was signing and did not understand the effect of the transfer; that her execution of the transfer was procured by undue influence; and that her execution of the transfer was procured in a manner and in circumstances constituting unconscionable conduct on the part of the defendants.

The plaintiff was born on 11 October 1912. She has been a widow since the death of her husband on 18 August 1959. She has four children: Kathleen Madge McGinniss, Shirley Doreen Gore, Sylvia Doreen Butters and Pauline Patricia Post. Mrs Post separated from her husband long ago. The other of the plaintiff's daughters are married, although in the case of Mrs Gore quite unhappily. Mrs McGinniss has no children. Mrs Butters has two children, Rachel and Brendon. Mrs Gore has one adopted child, Steven. Mrs Post has three children, the defendants (who are aged 20 years and 30 years respectively) and a daughter, Leanne.

The substance of the matters pleaded in support of the assertion that at the time she executed the transfer the plaintiff did not know what she was signing and did not know the effect of the document is as follows:

(a)the plaintiff was aged 78 years, blind, partially deaf and suffering from sugar diabetes, poor memory and intellectual impairment due to her advanced age and state of health;
(b)the transfer was not read to her and its contents were not adequately or properly communicated to her;
(c)the effect of the transfer was not, or not adequately or properly, explained to her;
(d)at the time that she executed the transfer the plaintiff was of the mistaken belief that she was executing a document of a wholly different kind, namely a document to assist the second defendant in obtaining a loan for an air–conditioning unit for his truck.

The following is a summary of the matters pleaded by the plaintiff as establishing undue influence:

(a)for some six weeks prior to the execution of the transfer the plaintiff generally resided with, and was dependent for her accommodation upon, the first defendant and his mother;
(b)during that period of six weeks the second defendant suggested to the plaintiff that she transfer the property to the defendants;
(c)the defendants' mother took the plaintiff to a firm of solicitors (Messrs Ogilvie McKenna) for the purpose of attending to a transfer of the property without explaining, or adequately explaining, to the plaintiff where she was being taken or the purpose for which she was being taken there;
(d)at the offices of Messrs Ogilvie McKenna the plaintiff was told to sign the transfer and that she then signed it, trusting her daughter Mrs Post that what she was signing would not be adverse to her interests;
(e)because of the trust which the plaintiff had in Mrs Post, she refrained from asking in detail about the nature or contents of the document signed by her;
(f)because of the plaintiff's condition and their blood relationship, Mrs Post knew or ought to have known that the plaintiff placed her trust in her to the extent that she would sign the document because it had been arranged by Mrs Post;
(g)the plaintiff was not informed or adequately informed of the nature, contents or effect of the document she was signing;
(h)the plaintiff had no independent legal advice in relation to the transfer and was not encouraged, invited or given any reasonable opportunity to obtain such legal advice.

In support of her allegation that the defendants were guilty of unconscionable conduct, the plaintiff relies upon the same matters as those relied upon as establishing undue influence.

I heard evidence from a large number of witnesses. Those witnesses included a number of family members, namely all four daughters, the defendants and Mrs Gore's husband and son. Unfortunately, it became clear that there has been a great deal of bitterness and acrimony in the family, much of it predating the transfer. It is no exaggeration to say that these family members have drawn up into two distinct and opposing camps. On one side are the plaintiff's daughters other than Mrs Post. On the other side are Mrs Post, the defendants, Mr Gore and to some extent Steven Gore. It became apparent to me that the evidence of all those witnesses was coloured to a greater or lesser degree by their dislike of those family members in the opposing camp, but that that was particularly so in the case of Mrs McGinniss, Mrs Butters and Mrs Gore. In considering whether particular evidence of any one of those witnesses ought to be accepted, it is necessary to bear in mind that each appears to have a real, although in some cases indirect, interest in the outcome of these proceedings. Mrs McGinniss, Mrs Gore and Mrs Butters would expect to share in the estate of the plaintiff upon her death, so that whether or not the house forms part of that estate is a matter of real interest to them. In addition it is apparent that they bear an intense dislike for Mrs Post, which dislike has manifested itself in acts of vindictiveness. The defendants have a direct interest in maintaining their ownership of the house and their mother might be expected to wish to act in their interests. The relationship between Mrs Gore on the one hand and her husband and son on the other hand has broken down. Whilst Mr and Mrs Gore continue to occupy the same house they live separately and apart. Their dislike for one another was obvious. Mr Gore might be expected to have an interest in hurting his wife, ie by doing what he could to deprive her of the expectation of ultimately taking a share of the house. Steven Gore might be expected to support his father.

Whilst there may be some reason to doubt the veracity in some respects of all these witnesses, in broad terms I prefer the evidence of the defendants, Mrs Post, Mr Gore and Steven Gore to that of Mrs McGinniss, Mrs Gore and Mrs Butters. I will examine evidence given by various of these witnesses as to particular matters in further detail. The obvious anger of the plaintiff's daughters, other than Mrs Post, at the transaction whereby the defendants benefited, often clouded their judgment and led them to embellish or exaggerate their evidence on many occasions.

The plaintiff herself gave evidence, but I place little reliance on what she said. That is no criticism of the plaintiff. I consider that she endeavoured to give truthful evidence of the facts as she saw them, but that her mental condition was such no reliance can be placed on what she said on any of the critical issues. I refer to the expert evidence about the plaintiff's mental state in due course. Even without reference to that, the unreliability of what the plaintiff told me was obvious. She asserted that she had never made a will, yet the undisputed evidence is that she has made at least five wills between 1985 and 1990. She told me that she was aged 70, whereas the undisputed evidence is that she is aged 80. She knew that her birthday was on the 11th day, but was unable to say of what month. She thought it might have been in December, but the undisputed evidence is that it is in October. When asked by her counsel why she had come along to Court, she gave the following answer:

"Well the two boys are trying to take my house and Rodney, he's living in there with some girl and I had to go and board with me one of me daughters – three daughters – go around them. I had the bumps taken out of this foot, sir."

The plaintiff appeared to be under the impression that she had been put out of her house by the defendants and that as a result of that she had to go and live with her daughters. The undisputed evidence is that the plaintiff had lived with one or more of her daughters for some years prior to the execution of the transfer, her disabilities and ill–health having been such that she was no longer able to live by herself. One of the sad aspects of this case is that I have no doubt that the plaintiff believed that she was prevented from living in her own house because of the actions of the defendants and that if only she could get her house back she would be able to resume living there. Nothing could be further from the truth. She is obviously quite incapable of living by herself. I suspect that her daughters, other than Mrs Post, have encouraged her to see this case in terms of her getting her house back in the sense of once again being able to live there.

The plaintiff is illiterate. She is barely able to sign her own name. Her late husband was a fireman. During the early years of the marriage the plaintiff and her husband resided in a house owned by the fire brigade in Melville Street, Hobart. Later when the fire brigade proposed demolishing that house, so that the land could be utilized for extensions to the fire station, the plaintiff and her husband purchased a house, also in Melville Street. That house was occupied by them at the time of the death of the plaintiff's husband. Subsequent to his death the plaintiff continued to live there until about 1972. In that year the house was sold to the Hobart City Council and the plaintiff then purchased the house at 8 Jutland Street, New Town which is the subject of the present action.

Until about 1979 the plaintiff was employed as a cleaner at various business establishments and in private homes. In that year she was diagnosed as suffering from diabetes. She underwent surgery on her foot. She did not work again. No doubt as a result of her illiteracy, the plaintiff has never been able to attend to her business affairs. In those affairs she was assisted by Mrs McGinniss. Mrs McGinniss attended to the plaintiff's banking transactions and matters such as the sale of the house in Melville Street and the purchase of the house in Jutland Street. She also assisted the plaintiff in other ways such as going shopping in supermarkets, as the plaintiff was unable to read labels on the goods displayed.

When the second defendant was a young child, he lived with his parents in a house in Melville Street, close by to the plaintiff's house. He told me, and I accept, that during that time he had frequent contact with the plaintiff. He attended the Campbell Street Primary School. Whilst still attending that school, his parents moved to New Norfolk and thereafter he lived with the plaintiff for some time so that he could continue to complete his primary education at the same school. He had been living with the plaintiff for between six and twelve months when she moved to Jutland Street. He said that he was very close to his grandmother and I accept that. I observed that whilst the plaintiff was giving her evidence, and being asked about her relationship with the second defendant, he became somewhat tearful although in an unobtrusive manner. I do not think that that was any feigned display of emotion. It appeared to be genuine distress at the plaintiff saying things which were hurtful to him having regard to their previous relationship.

The second defendant remained living with the plaintiff for some little time after she moved to Jutland Street and he then moved to New Norfolk to live with his parents. Not long afterwards his family moved to Glenorchy. When the second plaintiff was about fourteen, his father left his mother and he then moved back to live with the plaintiff. He remained living there whilst he completed his schooling and continued to do so until he went to work on the mainland. After some time he returned to Tasmania and shared a flat with his then girlfriend, now his wife. The second defendant told me, and I accept, that he continued to have frequent contact with the plaintiff. After the second defendant's girlfriend became pregnant, she and the second defendant lived at Jutland Street until the birth of the child. After a period of time the second defendant purchased a house and married his girlfriend.

The second defendant purchased a truck and set up in business as a cartage contractor. He often serviced his truck at the plaintiff's house at week–ends and spent time talking to the plaintiff on those occasions. He said, and I accept, that on one occasion the plaintiff told him that she wanted him to have her house, but at the same time saying that she wanted him to look after Rodney. The second defendant responded in terms that his grandmother could give Rodney half of the house if she was worried about Rodney being provided for.

The first defendant did not ever live with the plaintiff but he told me that when younger he had spent week–ends at her house and that until the events which gave rise to this action he had a good relationship with her. He told me that before losing her sight, the plaintiff had always said that she wanted him and Stephen to have the house. I accept that at some time statements to this effect were made. I found Miss Bailey, a family friend, to be a particularly impressive and sympathetic witness. She was a friend of the defendants' sister Leanne and gave evidence of having been at the plaintiff's house from time to time. In particular she recalled being there for lunch when the plaintiff said something in terms of needing to organize the house for "the boys". She said that the subject of the house came up on a number of occasions, initially in terms that the second defendant was to have it and then in terms of both defendants having it. I have no hesitation in accepting Miss Bailey's evidence that the plaintiff, whilst living in Jutland Street, made statements to this effect from time to time.

In the early 1980's the plaintiff started to lose her hearing. She was provided with a hearing aid. I accept that thereafter there has been some difficulty in communicating with her. Nevertheless, provided that one spoke loudly to her, she was able to hear. Over recent months the plaintiff has been wearing two hearing aids. Although it was necessary to speak loudly to her, it was plain that the plaintiff was able to hear the questions asked of her in the course of her evidence.

On 11 November 1985 the plaintiff made the first of the wills referred to in evidence. By that will the plaintiff made a bequest of $1,000 to each of her grandchildren and left the residue to her four daughters Mrs Gore and Mrs Butters were present when the plaintiff gave the instructions for that will, which was prepared by a trustee company. Mrs Butters said that there was no doubt in her mind that the plaintiff understood this will because "the gentleman there was very good – went over it very slowly – explained it all to her – she fully understood that one". Mrs Butters told me that at that time there was some reference to the second defendant wanting the house and that someone said that he could be given three months to put up the money to buy it, and that if he did not want it within three months "the next person" could buy it. The will provided "that in the event of my principal residence being required to be sold, such residence shall be first offered for sale to my said daughters and my said grandchildren who have attained their majority at a valuation as determined by an independent valuer such offer to be accepted or declined within sixty days of my death".

Mrs Butters gave evidence that the second defendant had always been "at" the plaintiff for the house, to which the plaintiff had said "no way", but that he could have first offer. Later in evidence it transpired that Mrs Butters had never heard the second defendant say anything of the sort, but that the plaintiff had told her that the second defendant had indicated that he wanted the house "about twice". Later again, she agreed that her mother had said no more than that the second defendant had told her that he liked the house. This was but an instance of exaggeration on the part of Mrs Butters.

Mrs Butters was cross–examined about the plaintiff's relationship with the second defendant. She said that her mother was not fond of the second defendant, and was frightened of him more than anything else. She said that the plaintiff had never shown any fondness towards the second defendant. Having answered these and other questions using the words "fond", she then asked "What do you mean fond of him?" Whilst I have some doubts about the extent to which Mrs Butters had the intellectual capacity to understand questions put to her, I do not accept her evidence as to the nature of the relationship between the plaintiff and the second defendant, particularly when she suggested that the plaintiff was frightened of the second defendant. Mrs Gore also gave some evidence about the relationship between the plaintiff and the second defendant, suggesting that the second defendant treated his grandmother with little respect. I do not accept that evidence.

Each of Mrs McGinniss, Mrs Butters and Mrs Gore gave some evidence obviously calculated to denigrate Mrs Post's care of and concern for her mother. Mrs Butters said that from time to time Mrs Post would ask her for stale bread. Asked whether Mrs Post indicated why she wished to have stale bread, she said "I dunno. Presumably to toast I suppose". Asked the question again, she answered "To give to Mum". I am satisfied that Mrs Post never offered any such reason. I accept that she did ask Mrs Butters from time to time whether she had any stale bread, but that her purpose in asking was so that she could feed it to her duck and bantams. The suggestion made by Mrs Butters that it was asked for so that it could be fed to the plaintiff was plainly calculated to show Mrs Post in a bad light. Mrs Gore said that she had had a good relationship with Mrs Post until some time "before the house went", but shortly thereafter she said that the deterioration in their relationship started over a load of wood which she and Mrs McGinniss and Mrs Butters had bought for the plaintiff. That was an episode which occurred some four or five years before the plaintiff left Jutland Street. Mrs Gore was very ready to suggest that the wood went too quickly because Mrs Post was taking some of it, but did not appear to have any sound reason for so believing. Mrs McGinniss said that up until November 1990 Mrs Post had not had the plaintiff at her house for any length of time, giving the impression that Mrs Post did not wish to be bothered with her mother. The facts do not bear this out.

Having suffered from deteriorating eye sight for some time, in August 1987 the plaintiff lost her sight completely. A specialist, Dr Treplin, was consulted and he advised surgery. In about December 1987 the plaintiff underwent surgery. It was not successful in restoring her sight, although she was able to distinguish between night and day. Upon the plaintiff's release from hospital, she took up residence in the Gore household, although it was intended that she live with her various daughters on a roster basis.

Mrs McGinniss told me that at the time that the plaintiff underwent this surgery she started to keep a book recording how the plaintiff's pension was dealt with. It appears that Mrs McGinniss took charge of the plaintiff's finances and paid various of her sisters amounts for board and lodging, by way of reimbursement of expenses incurred in relation to the plaintiff and by way of remuneration for various other services performed by them for the plaintiff. The book indicates that generally the four daughters were assiduous in recouping themselves for all expenditure, no matter how trivial, and being paid for all services rendered. By way of example, Mrs Butters told me that whilst staying with her, the plaintiff might have a meal with Mrs Gore, who lived a few kilometres away, and that in that event the person collecting and returning the plaintiff would be reimbursed for the cost of the petrol involved. Mrs McGinniss told me that she started keeping the book because Mrs Post "kept telling my mother that I was taking her money". I do not accept that Mrs Post made any such complaint on a regular basis.

During 1988 the plaintiff variously lived with Mrs Gore, Mrs Butters and Mrs Post. On 12 January 1988 having suffered from sweating attacks, the plaintiff consulted a general practitioner Dr Dick. Dr Dick was not the plaintiff's normal general practitioner, but was a partner of Dr Potter, who was one of the plaintiff's normal general practitioners. It appears that when the plaintiff was staying with Mrs Post, she normally consulted a general practitioner, Dr Randall, and that when she was staying with any of her other daughters, she normally consulted Dr Potter. On the occasion of this consultation, Dr Dick noted that the plaintiff appeared to have "gone down hill lately, deteriorated mentally, visual and auditory acuity is very poor". Dr Dick said that that note represented her own observations rather than what anyone had told her. Normally the plaintiff was accompanied by one or more of her daughters when she consulted a medical practitioner and it may be assumed that she was so accompanied on this occasion. As she was then staying with Mrs Gore, it may be that she accompanied the plaintiff. This consultation was not long after the unsuccessful surgery on the plaintiff's eye. That lack of success was no doubt distressing to the plaintiff. I feel unable to conclude upon the basis of Dr Dick's evidence that she actually and reliably observed any relevant mental deterioration on this occasion. The consultation occurred almost five years ago. Dr Dick had only seen the plaintiff on one previous occasion, and that was some nine years earlier. There is other evidence, to which I refer shortly, which is to the contrary.

What I say is no criticism of Dr Dick. It is just that I do not find this evidence on her part to be sufficiently persuasive to establish any relevant mental deterioration as at the time she saw the plaintiff on 12 January 1988.

On 17 August 1988, at a time when it appears that she was residing with Mrs Gore, the plaintiff made a further will. This will was prepared by the same trustee company which prepared the 1985 will and provided for a number of specific bequests in differing amounts to the plaintiff's children, grandchildren and great grandchildren (other than the defendants) and for a specific devise of the house to the defendants, with the residual estate being left to the four daughters. Mrs Post accompanied the plaintiff to the trustee company for the purpose of making this will. The plaintiff's other daughters were unaware of its existence. The plaintiff gave the second defendant a copy of this will. He said, and I accept, that at the time that he was given this copy, or when he was given a copy of a later will, the plaintiff told him that she wanted to leave the house to him because Mrs McGinniss had no children and would leave her house and shack to the dogs' home, that Mrs Gore owned her house and that her husband would get a big pay out from the Marine Board (his employer), so that Steven Gore would want for nothing, and that Mrs Butters owned everything so that her two children would want for nothing.

During the last few months of 1988 the plaintiff was residing with Mrs Post. Mrs McGinniss gave evidence of an occasion when she took the plaintiff to Mrs Post's house, when the second defendant threatened to injure her and said to her, by reference to the plaintiff, that she could not leave "the bloody old bitch" there. When Mrs McGinniss was cross–examined as to this incident, I found her to be quite evasive. She was prepared to assert that the second defendant had used certain offensive words yet later she said that she could not recall if he had used those words. Whilst it is possible that there was some form of disagreement between Mrs McGinniss and the second defendant, I do not accept that her account of it was at all accurate. Mrs McGinniss' evidence was calculated to suggest that the plaintiff would not have been likely to have wished to benefit the second defendant.

Whilst living with Mrs Post in late 1988, the plaintiff consulted Dr Randall on a number of occasions. The first of those consultations was on 22 September 1988. The purposes of those consultations were to obtain a referral to another ophthalmic specialist and to manage the plaintiff's diabetes. Although he did not complete his training because of a change in his domestic circumstances, Dr Randall undertook psychiatric training between 1976 and 1980. Whilst the plaintiff's hearing deficit meant that Dr Randall had to be particularly careful to ensure that the plaintiff understood what he said, he found that what she said was responsive to the questions asked by him, was in terms which were appropriate and was indicative of her following what he was saying to her. He said that she was quite alert, able to focus on his questions and to respond appropriately. He detected no sign of dementia. I accept that evidence.

On 6 November 1988 the plaintiff travelled to Melbourne, accompanied by Mrs Post, so that she could undergo further eye surgery. Mrs McGinniss was opposed to the plaintiff going to Melbourne for this purpose, as were Mrs Butters and Mrs Gore. Mrs Butters said that she did not wish her mother to go because she thought that the operation would kill her. Mrs Gore took steps with a view to preventing the plaintiff from going to Melbourne. I am satisfied that the plaintiff wished to undergo this surgery and that Mrs Post encouraged her, being hopeful that some sight might be restored. Mrs McGinniss said that her mother would have gone to America to regain some of her sight back. By way of contrast Mrs Butters said that the plaintiff did not want to go to Melbourne but that Mrs Post had insisted on taking her. All of the plaintiff's daughters, other than Mrs Post, appeared to me to be possessed of somewhat dominating personalities. They had decided that it was in the plaintiff's best interests that she not go to Melbourne to undergo surgery and were unhappy that that decision was challenged. The plaintiff was prepared to try anything which held out some chance that some of her sight might be restored to her. She was entitled to make that decision for herself. The only support she obtained was from Mrs Post, which says something of their relationship at that time. The provision of that support would not have endeared Mrs Post to her sisters.

Shortly before travelling to Melbourne, the plaintiff made yet a further will on 4 November 1988. It was prepared by the same trustee company. Mrs Post was present when that will was made. Having regard to the apparent extent of the plaintiff's state, the financial provisions made by that will differed little from those contained in the previous will. However, it contained a provision that any attempt by a beneficiary to "contest" the will would result in the revocation of "his or her inheritance". The second defendant was handed a copy of this will by the plaintiff. That provision is indicative of the fears then held by the plaintiff.

The surgery performed in Melbourne did not result in the restoration of the plaintiff's sight. In fact it appears that whereas prior to surgery the plaintiff was capable of distinguishing between night and day, thereafter she lost her sight completely. From the time of her return from Melbourne until 26 September 1990 the plaintiff resided at the homes of Mrs Butters, Mrs Gore and Mrs Post. For the last few months of that period Mrs Post and Mrs Butters shared the care of the plaintiff. She slept at the house of Mrs Post but spent the daylight hours at the house of Mrs Butters.

Between 26 September 1990 and 7 November 1990 the plaintiff resided with Mrs Post. Mrs Butters gave evidence that on 26 September 1990 she came to collect her mother as usual but that Mrs Post told her that her mother was not going. Mrs Butters said that she waited on the doorstep for some time (apparently the relationship was such that she was not invited into the house) and eventually left. Mrs McGinniss said that she telephoned Mrs Post some time later and that a rather acrimonious exchange occurred. It appears that Mrs McGinniss believed that Mrs Post wanted to keep the plaintiff at her house for financial reasons. Mrs Post was not asked why the plaintiff did not return to Mrs Butters' home on 26 September 1990 and I am unable to make any finding as to the reason. The degree of acrimony attending the telephone conversation may be gauged from the fact that Mrs McGinniss said that she has not spoken to Mrs Post thereafter. Whilst living at Mrs Post's house during this period the plaintiff often spent time talking to the second defendant. He was the plaintiff's first grandchild, was considered by her to be her favourite grandchild and she bore a particular affection for him. For some years prior to 1990 the plaintiff had been quite determined that she wished the defendants to have her house. That wish was evidenced by the two wills which she made in 1988. I accept the second defendant's evidence that during one of the conversations which he had with the plaintiff at his mother's house during the latter part of 1990 she said something about "doing it now", referring to a transfer of the house to the defendants, so that her daughters other than Mrs Post would not be able to do anything about it when she died, as they "would not be able to dig her out of the box". That conversation was in a context to which I refer shortly.

It was the plaintiff's 78th birthday on 11 October 1990. Apparently Mrs McGinniss, Mrs Gore and Mrs Butters had arranged to celebrate this at the home of Mrs Butters on the preceding day. The plaintiff was brought to Mrs Butters' home by Mrs Post. It says something for the relationship between the sisters at that time that it appears that Mrs Post was not invited to attend this gathering, or even to enter the house when she brought the plaintiff. During cross–examination, Mrs Butters volunteered the statement that whilst the plaintiff was at her house on that day she was sitting there as if in agony. Upon being cross–examined about this, she claimed she did not know what the word "agony" meant. I do not accept that. I reject the proposition that the plaintiff gave any indication that she was in agony. Mrs Gore said that on this occasion the plaintiff looked drawn and white and was a totally different person from when she had last left her house, which was on 2 August 1990. That was in contradiction to other evidence which she gave, and I am satisfied that it was a gross exaggeration. I note that Mrs McGinniss said that when the plaintiff arrived she looked quite well.

Earlier on the day of the birthday celebration Mrs Gore had consulted professionally a member of the firm of Ogilvie McKenna on a matter quite unrelated to the plaintiff. Mrs Gore said that the solicitor asked her whether she knew that her mother had "fixed the house up for Rodney and Stephen". She said that he told her to say nothing to her mother. That was a rather surprising thing for the solicitor to say, having regard to the normal incidents of the solicitor and client relationship. However, the solicitor was not called to give evidence so that it is inappropriate to make any adverse comment. Nevertheless, I am satisfied that the solicitor told Mrs Gore something which alerted her at least to the possibility that the plaintiff might have done something in relation to her house which would benefit the defendants. Mrs Butters gave evidence that when Mrs Gore arrived for the gathering with a birthday cake, she asked Mrs Butters to come into the bedroom and there told her that the plaintiff "had been up there and signed the house, or something". Although I am persuaded that Mrs Gore was alerted to the fact that something had happened in relation to the house, I reject the suggestion that she was told anything at that time to the effect that the plaintiff had taken steps which amounted to "fixing the house up" for the defendants. Those steps were not taken until 26 October. Mrs Post spoke on the telephone to the solicitor prior to 26 October 1990 when he was told what the plaintiff proposed doing. He made a note of that and passed it on to another solicitor in his office. The note of his attendance is dated 16 October 1990. If that is the date upon which he was first told of what the plaintiff was proposing to do then I do not understand how he could have told Mrs Gore anything about it on 11 October 1990. It is possible that the date on the attendance note is wrong or that Mrs Gore saw him on a later date. It may be that the plaintiff's birthday celebration was a week later. In any event I am satisfied that Mrs Gore was told something by the solicitor which alerted her to the possibility that the plaintiff may have given her house to the defendants.

Mrs Post gave evidence that some time prior to 26 October 1990 the plaintiff asked her when the second defendant would have his next day off work, as she wished to go and get the house fixed up so that the boys could have it before she went "to her box". Mrs Post said that the plaintiff indicated that she wished the house to be transferred to the defendants then and there so that none of her other daughters would know about it. As I have said there had been earlier discussions between the plaintiff and the second defendant on the same subject. The plaintiff expressed concern about the prospect of her daughters other than Mrs Post challenging her will when they ascertained that she had left her house to the defendants. The second defendant told the plaintiff that to avoid that she could effect the transfer there and then. The plaintiff accepted that suggestion, although nothing was done about it immediately. On the following week–end she again raised the subject with the second defendant and told him that she wished to proceed with the transfer. Mrs Post was asked to telephone a solicitor to make the necessary arrangements and she did so.

On 26 October 1990 the plaintiff, the defendants and Mrs Post attended at the offices of Messrs Ogilvie McKenna. They were seen by a solicitor, Mrs Louise Mollross. During the course of the plaintiff's attendance on Mrs Mollross, she executed the transfer the subject of this action and a new will whereby she appointed Mrs Post as sole executrix, bequeathed her furniture and articles of personal use to the defendants and devised and bequeathed the residue of her estate to her grandchildren, other than the defendants, and to her great grandchildren.

Careful consideration needs to be given to the evidence of Mrs Louise Mollross which I accept. At the time that she attended to these transactions she had been admitted as a legal practitioner for a period which was slightly in excess of three years. The plaintiff was not known to her. On 25 October 1990 she spoke to the plaintiff on the telephone after she had been told by the member of the firm who had initially spoken to Mrs Post as to what was proposed. The matter had been passed on to Mrs Mollross because she dealt with conveyancing matters whereas the other solicitor did not. During the course of the telephone conversation the plaintiff told Mrs Mollross that she wished to "give her house to her grandsons now" and that she wished to see a solicitor to deal with the relevant legal matters. Mrs Mollross said that there was some discussion during the course of that telephone conversation on the subject of whether or not the plaintiff ought to seek advice other than from the firm of Ogilvie McKenna, but I do not consider that what was said by Mrs Mollross to the plaintiff amounted to any real suggestion that she obtain independent legal advice. Mrs Mollross said that during the course of the telephone conversation she made some reference to the defendants needing assistance in relation to borrowing funds from a bank or a credit union, apparently in order to pay the stamp duty, registration fee and costs relating to the transfer. Mrs Mollross' enquiry was in terms as to whether the plaintiff was content that the firm of Ogilvie McKenna act for her in relation to the transfer whilst at the same time the firm was involved in assisting the defendants in obtaining finance. I do not consider that such an enquiry amounted to advising the plaintiff that it would be appropriate for her to take separate advice. The reference to the possibility that the firm would be assisting the defendants in obtaining a loan as being relevant to whether the firm should act for the plaintiff I find difficult to understand. If the possibility of seeking other independent legal advice was appropriate to be raised with the plaintiff, it was not because of the possible borrowing, but because of the very nature of the transaction with which the plaintiff was intending to proceed, namely to absolutely dispose of her house without consideration. Mrs Mollross said that the plaintiff's response to her was that "she was more than happy for us to be involved on behalf of the grandsons in obtaining their finance and actually doing the transfer of the land or of the house all in the one office".

Mrs Mollross said that the plaintiff arrived at her office accompanied by the other persons. Initially she spoke to all four of them together. She explained how stamp duty would be calculated and what other costs and fees would be payable. Mrs Post and the defendants then left her room and she spoke with the plaintiff alone. Mrs Mollross said that she spoke to the plaintiff alone so that she could ensure that she understood what she was doing and that no pressure was being applied by reason of the presence of the other persons in the room. She said that she wanted to be completely certain that the plaintiff knew exactly what she was doing. She spoke to the plaintiff alone for about half an hour. Mrs Mollross asked the plaintiff whether she understood that she was giving away her house then and there, that she would be receiving no money for it, and that she would not necessarily have a house to live in any longer. She raised each of those questions separately and then discussed the whole matter again. She asked the plaintiff what she wished to do, to which the plaintiff said that she wished to give her house to the defendants immediately. Mrs Mollross enquired of the plaintiff as to her reasons for wishing to do that. The plaintiff responded that she was elderly, had difficulty getting about because of a problem with a leg, that she was partially blind (in fact she was completely blind), that she could not keep up the maintenance of the property and that the defendants would be able to look after it. The plaintiff also told Mrs Mollross that Mrs Post and her other three daughters did not get along and that she wished to prevent a family argument after her death, which I infer she envisaged would occur if by her will the house was devised to the defendants. Mrs Mollross told the plaintiff that the effect of the transfer would be that she would no longer have a house, that it would belong to the defendants and that it would no longer be her house. The plaintiff satisfied Mrs Mollross that she understood the effect of a transfer to the defendants.

At one stage the plaintiff became frustrated with Mrs Mollross because she was repeatedly asking the same questions and she told Mrs Mollross that she understood that she was giving her house to the defendants "now".

Having had those discussions, Mrs Mollross caused the requisite transfer to be prepared and executed by the plaintiff. Before the plaintiff left Mrs Mollross' office, Mrs Mollross made a suggestion as to the obtaining of a medical opinion. Mrs Mollross said that "given that she'd indicated to me that Mrs Post and her other three daughters didn't get along and she was concerned about there being an argument, I suggested to her it would be prudent to obtain a doctor's certificate in respect of her mental capacity so that it could be placed in the firm's strong room with her will". Mrs Mollross said that as the plaintiff was leaving, she repeated that suggestion in the presence of Mrs Post and the defendants. Counsel for the plaintiff made much of this advice, but I consider that the advice given by Mrs Mollross was proper and prudent advice. Given that she was dealing with an elderly client, who had alerted her to the possibility that the transaction which she was effecting would be looked at most unfavourably by three of her daughters, contemporaneous evidence as to her mental capacity was appropriate. It ought not to be inferred from Mrs Mollross' advice that she had any doubts about the plaintiff's mental capacity. She asserted, and I accept, that she had no such doubts. However, a prudent solicitor, knowing what Mrs Mollross knew, might well consider it appropriate to take some precautionary steps so that later unwarranted allegations that the plaintiff had entered into a transaction when she lacked the mental capacity to comprehend the nature and effect of that transaction might more easily be rebutted. Counsel criticized the fact that it was the plaintiff, being the person whose mental capacity might be in issue, who was asked to go and get the medical advice. In my view, that action was perfectly consistent with Mrs Mollross dealing with a person about whose mental capacity she had no doubt. If any criticism is to be made of the advice given by Mrs Mollross as to the obtaining of a medical opinion, it is that a more experienced solicitor might have suggested that she write to the medical practitioner indicating the precise reason for the plaintiff being seen by the medical practitioner and providing copies of the instruments executed with a summary of their legal effect.

In accordance with the advice given by Mrs Mollross, the plaintiff, accompanied by Mrs Post, duly consulted Dr Randall on 29 October 1990. He saw the plaintiff for a period of 36 minutes. Initially Mrs Post was in the room, but after a few minutes he asked her to leave and she did so. At the time he saw the plaintiff Dr Randall noted that she said to him quite adamantly "I changed my will because my three daughters are bitter toward me and I have left it [ie the house] to my two grandsons who I am fond of who have been good to me, and what little money I've got, to the grandchildren." Counsel for the plaintiff pointed to this as suggesting that the discussion had been in terms of a will rather than a transfer and I consider there to be considerable force in that. Dr Randall said that the plaintiff was quite adamant that she had transferred her property to her grandsons and left her money to the grandchildren. He said that he explored her reasons and intentions for transferring property and for making a new will, and that she quite spontaneously said that she wanted to do it. He said that there was nothing that made him suspect that she had not understood precisely what she had done. I believe that Dr Randall may have been mistaken when he recalled references to an actual transfer of the property. However, not too much ought to be made of that as the plaintiff's intellectual capacity would not have been such as to enable her to clearly distinguish between different types of legal instruments or to know that it was not possible to make an inter vivos gift by means of a will. I accept that when the plaintiff saw Dr Randall she was capable of understanding the effect of an immediate gift of the house although she may not have understood that such a gift could not be effectuated by will. Dr Randall knew that he was being asked to form a judgment as to the plaintiff's mental capacity in relation to dispositions by her of her property. He had not been told just what instruments had been executed and had not been told what legal instruments were required to give effect to an immediate gift of the house. If there were unsatisfactory aspects to Dr Randall's evidence they were the result of him having been inadequately briefed. None of this derogates from Dr Randall's evidence as to the plaintiff's mental alertness which I accept.

Dr Randall questioned the plaintiff with a view to forming some judgment about her mental capacity generally. She knew her birth date but could not recall the year. She knew the address of the house in Jutland Street, the current month, her own full name, her maiden name, the name of Dr Potter and the name of the Prime Minister. She was able to give an accurate account of moving to stay with Mrs Post some eight weeks earlier and a very detailed account of a recent murder and a stabbing in Hobart. In general she gave detailed and accurate accounts of events that concerned and surrounded her. There was no evidence of delusions, auditory hallucinations or mood disorder. Dr Randall was of the view that he had no reason to suspect that she was demented or otherwise incapable of making rational decisions for herself. I accept that evidence.

By the time that the plaintiff saw Dr Randall, Mrs McGinniss, Mrs Butters and Mrs Gore were anxious to find out just what the plaintiff had done with her house. Some time prior to 7 November 1990 Mrs Gore, in the company of Mrs Butters, went to Mrs Post's house late in the afternoon. She told Mrs Post that she wished the plaintiff to come with them for her evening meal. Mrs Post demurred and told her sisters that she had "the tea cooking". An argument ensued. Mrs Gore and Mrs Butters insisted that they take the plaintiff and Mrs Post not unreasonably thought that they were acting unreasonably. The first defendant intervened. Mrs Butters pushed him and he then pushed her, causing her to fall over. This episode was just another indication of the acrimonious relationship existing between Mrs Post and her sisters.

On 7 November 1990, at Mrs Butters' request, Mrs Post brought her mother to the former's home for lunch. There was much evidence about the plaintiff's condition when she arrived and about the subsequent events that day. I do not feel the need to repeat that evidence. It suffices to say that I am satisfied that Mrs McGinniss, Mrs Butters and Mrs Gore grossly exaggerated the plaintiff's condition which involved no more than a simple case of conjunctivitis. The precise reason for the plaintiff not being returned to Mrs Post does not appear from the evidence. I apprehend that Mrs Post's sisters would have me believe that it related to the plaintiff's condition and that that was indicative of Mrs Post not caring for her mother properly. I am satisfied that there was one reason and one reason alone for the plaintiff not being returned and that was that the three daughters were anxious to find out just what their mother had done with her property. Suspecting that members of the Post family had benefited, they wished to get her away from Mrs Post. Neither Mrs Post nor the defendants had seen the plaintiff from that day until the day on which she gave evidence in court. Matters were put to the defendants in cross–examination suggesting that having got the plaintiff's house, they were no longer interested in having any contact with her. In my view, the converse is true. I am quite sure that all of them would dearly love to have contact with her. I am quite satisfied that Mrs Post's sisters have ensured that the plaintiff has had no further contact with Mrs Post or her sons. Mrs Post and the defendants were criticized for what were suggested to be limited and half–hearted attempts to contact the plaintiff subsequent to her finally leaving the house of Mrs Post. Having seen and heard Mrs Post's sisters in the witness box, I am in no doubt that they determined that their mother would have no further contact with their sister or with the defendants and that they have acted accordingly.

Over the next few days there were a number of contacts between Mrs Butters and the defendants. There were heated exchanges and allegations that she was assaulted by Stephen Post and threatened by Rodney Post. I do not find it necessary to make any findings of fact as to precisely what happened, but I accept that there were arguments. The defendants were upset about the way in which their mother had been treated by her sisters. The first defendant made an attempt to see his grandmother. I suspect that there was fault on both sides. The defendants were angry, as was Mrs Butters.

The plaintiff's daughters other than Mrs Post considered it appropriate that the plaintiff make a new will. I infer that at that stage they may not have been aware of the precise ramifications of what the plaintiff had done when she saw Messrs Ogilvie McKenna. They made arrangements for a solicitor from the Public Trust Office to attend at Mrs Gore's house to take instructions from the plaintiff for a new will. Mrs Butters claimed that this occurred whilst the plaintiff was still living with Mrs Post. Clearly she was wrong about that. Mrs Butters seemed reluctant to concede that she and her sisters went to the Public Trust Office for the purpose of arranging for someone to call on the plaintiff so that she might give instructions for a will. She talked about going there for the need to explain about a will because "at the time Stephen was trying to mortgage my mother's house". As to what was the basis for any such belief on her part was not explained.

As a result of what transpired at the Public Trust Office, arrangements were made for a solicitor to attend at Mrs Gore's house on 12 November 1990. The appointment was duly kept when Mrs Maria Gibbs, a solicitor employed by the Public Trustee, accompanied by a clerk, Mr Healey, attended at Mrs Gore's house. Mrs McGinniss, Mrs Gore and Mrs Butters were all present when Mrs Gibbs arrived. According to Mrs Gore that was just a matter of chance, but I do not accept that. All three had gone to the Public Trust office to make the necessary arrangements so that one might assume that all three were aware as to when Mrs Gibbs was to call.

As to what occurred whilst Mrs Gibbs and Mr Healey were at the house is of critical importance. Mrs Gibbs and Mr Healey gave one account. Very different accounts were given by Mrs Gore and Mrs Butters. Mrs McGinniss was not cross–examined as to the events surrounding Mrs Gibbs' attendance on the plaintiff. However, counsel for the defendants told me that that was as the result of an oversight on his part and that was accepted by counsel for the plaintiff. Accordingly, no adverse inference is to be drawn by reason of that omission. I say at once I have no hesitation in preferring the evidence of Mrs Gibbs and Mr Healey to that of Mrs Gore and Mrs Butters.

The account given by Mrs Gibbs was as follows. On 12 November 1990, accompanied by Mr Healey, she went to Mrs Gore's house in Mount Stuart at about 11.00am. She was introduced to the persons present, namely the plaintiff, Mrs Gore, Mrs Butters and Mrs McGinniss. Mrs Gibbs asked whether she and Mr Healey could see the plaintiff privately. The other three women then left the room. Mrs Gibbs commenced talking to the plaintiff, using a raised voice. She asked the plaintiff a number of questions and the plaintiff answered those in a responsive way. The questions related to the preparation of a will. Whilst this was proceeding, the other three women burst into the room and started to yell at the plaintiff. They accused the plaintiff of being ungrateful. The plaintiff became upset, started to cry and held Mrs Gibbs' hand. She tried to comfort the plaintiff. One of the plaintiff's daughters then handed Mrs Gibbs a note and said something to the effect that "that was how her will should be made". Mrs Gibbs said that she and Mr Healey were asked to leave and they did so. Mr Healey's evidence was to broadly similar effect. In addition he recalled that when the women burst into the room, one of them suggested that he and Mrs Gibbs "had been twisting their mother's words". Neither counsel asked Mrs Gibbs to produce the note. Mrs Gibbs was called as a witness by the defendants and she made a claim to legal professional privilege insofar as the actual communications between her and the plaintiff were concerned. Privilege was not waived by the plaintiff.

Mrs Butters gave evidence that Mrs Gibbs and Mr Healey were left alone with the plaintiff and denied that they were asked to leave the house. Mrs Gore said that Mrs Gibbs accused her and her sisters of listening at the door when that had not occurred. She denied having ordered Mrs Gibbs and Mr Healey from the house, but did say that she told them to "just let it go and my mother will probably come again". She said that her mother got upset and then said that she would not bother making a will. The plaintiff may well have said that, but only because of the actions of Mrs Gore, Mrs Butters and Mrs McGinniss as described by Mrs Gibbs and Mr Healey. By way of explanation as to why she would not have listened at the door, Mrs Gore said that it was a matter of complete indifference to her as to who inherited the plaintiff's estate. I do not believe that for a moment. It was a matter of great moment to her.

These events are of significance in the context of this case. I infer that when the three women burst into the room they had heard what had passed between Mrs Gibbs and the plaintiff and were unhappy about the trend of the conversation. That could only have been because it suggested that she wished to dispose of her estate, or had disposed of her estate, in a manner other than the manner which her three daughters considered appropriate. Having regard to the previous history, I infer that the plaintiff was making it clear that she wished the defendants to benefit. I infer that the piece of paper handed to Mrs Gibbs suggested that a will ought to be made in terms which were quite different to what the plaintiff had been saying to Mrs Gibbs. This evidence is important for two reasons. It supports the proposition that the plaintiff had had a long standing determination that the defendants have her house. It is indicative of Mrs McGinniss, Mrs Butters and Mrs Gore arrogating to themselves the right to decide how the plaintiff ought to dispose of her estate. My observations of them in the witness box suggest that having decided how the plaintiff ought to dispose of her estate they were determined to do all they could to ensure that their wishes were complied with.

On 20 November 1990 the plaintiff made a further will. It was prepared by the trustee company which had prepared the first three wills. Mrs Gore and Mrs Butters took the plaintiff to the office of the trustee company and both were present whilst instructions for the will were taken. By that will the plaintiff made provisions substantially similar to those contained in the will made in 1985 save and except that there was no specific reference to the house. Mrs Butters said that she considered the plaintiff knew what she was doing when she made this will because "the man explained it to her and she told the man what she wanted to do". Mrs Butters said that she was "pretty sure" that the plaintiff knew what she was doing. I am not persuaded that at the time she made this will the plaintiff was other than fully aware that she had already disposed of the house.

Later that day the plaintiff, accompanied by Mrs Gore and Mrs Butters, went to the Savings Bank of Tasmania at Glenorchy. Mrs Gore said that they went because she had suggested to the plaintiff that she go and check her deeds. Mrs Butters told me that they went to a counter and spoke to a bank officer and that the plaintiff asked that officer for her deeds. Mrs Butters said that the plaintiff almost collapsed upon hearing the news that there were no deeds there. Mrs Gore said that the plaintiff said to get the police, and that upon returning home the plaintiff said to ring Mrs Post to find out where the deeds were. I do not accept the evidence of the plaintiff's supposed distress upon ascertaining the fact that the certificate of title relating to her house no longer was held by the bank. If there was any distress it was on the part of Mrs Butters and Mrs Gore. They took the plaintiff to see Mrs McGinniss who said that the plaintiff then looked as though she had had a severe shock, that she was crying, trembling, pale and could hardly speak. I do not accept that evidence.

Mrs Butters gave evidence that after returning home from the bank Mrs Gore "explained a bit more to Mum what had happened". What it was that was explained was not elaborated upon. I accept that not long after the visit to the bank the plaintiff had a telephone discussion with the second defendant, but I reject the proposition that that telephone call was made by the plaintiff in an endeavour to ascertain where her title deeds were. Generally I accept the second defendant's evidence as to this telephone call. He said that he had a normal conversation with the plaintiff, but that Mrs Gore was heard in the background saying "ask him where the deeds are".

Mrs McGinniss suggested that a solicitor be consulted about the matter. Mrs Gore and Mrs Butters consulted the yellow pages of the telephone directory, as a result of which they made an appointment to see a solicitor, Mr Badenach, on the following day. On that day the plaintiff, accompanied by Mrs Butters and Mrs Gore, went to see Mr Badenach. If Mrs McGinniss, Mrs Butters and Mrs Gore are to be believed, then it might have been expected that the plaintiff would have remained in a very distressed state when seen by Mr Badenach. Nevertheless he was not called by the plaintiff. Mrs Butters said that in her presence Mr Badenach made a telephone call and then said that the house had "partly gone through" but that he would "put a cravat [sic] on it to stop it being sold".

On the same day the plaintiff saw Dr Potter. It appears that the plaintiff was accompanied by one or more of her daughters. Dr Potter said that someone mentioned that the plaintiff had signed a legal document and that there were concerns on the part of a family member about her ability to understand that document. He said that as a result he put some simple questions to the plaintiff in an attempt to form some judgment about her intellectual capacity. He did not record or recall the questions asked or the answers provided. He did record in his notes "Cannot answer any but the simplest of questions". By reference to earlier consultations Dr Potter said that he did not normally enquire into the plaintiff's intellectual state but that he did recall occasions when the plaintiff was tearful and agitated. He ascribed a number of causes to that including "stresses that were occurring within her family relationship with her daughters". I do not feel able to draw much assistance from what Dr Potter was able to tell me, particularly in relation to the consultation on 21 November 1990. That the plaintiff is and has been a person of limited intellectual capacity appears undoubted. Whether that limited intellectual capacity is to have any particular legal consequences depends upon other factors.

In September 1991 the plaintiff was seen by a psychiatrist, Dr Sale, and in October and November 1991 by a clinical psychologist, Mrs Page. Those persons saw the plaintiff for the purposes of this action. Their evidence was not seriously challenged and in general I accept it, albeit with some reservations. As a result of having seen the plaintiff, Dr Sale categorized her as being very disabled, suffering from virtual total blindness and a very significant hearing impairment, having poor intellectual functioning perhaps amounting to borderline retardation, probably being illiterate, probably suffering from further intellectual impairment of which memory impairment was the cardinal feature and suffering from depression. Dr Sale expressed the following opinions:

"1The opinion concerning Mrs Mollross' mental state and functioning relied upon my own observations conducted over 2 interviews at her place of residence, and information provided by her general practitioner, Dr D Potter, both letters and by telephone.
2That in advising upon testimatary [sic] capacity, I would evaluate whether an individual was able to:
(a)have knowledge of their natural heirs or those who would have reasonable claim upon their estate.
(b)could understand what a Will was, and its purpose.
(c)that they had a knowledge of the extent of their assets.
(d)that there was no abnormal mental process present which would pathologically distort their judgment, eg hallucinations or delusions.

On this basis Mrs Mollross possibly has testamentary capacity although her case is equivocal. I think it would be possible for Mrs Mollross to make a valid Will, but the procedure would have to be conducted with great care given her mental limitations, and the very significant communication problems which aggravate the situation. It may well be that her mental competence fluctuates to some extent and thus any examination to determine testamentary capacity would need to be closely related in the temporal sense to the making of the Will.
3It would seem to me that a Memorandum of Transfer as conducted on the 5th November 1990 is a more complex matter than the making of a Will. The fundamentals of making a Will would be well known to almost all people in the community, that is the basic process and its effect, and when that effect takes place, ie after death. A Memorandum of Transfer however is a less common procedure, and has potentially immediate implications. While Mrs Mollross may just have had the capacity to make a Will at the requisite time, I would have grave doubts that she could reasonably comprehend a more complex matter. Her global functioning is very poor. Not only does she appear to be mentally impaired, but is illiterate, poorly educated, blind and deaf."

I have some difficulty with the last of these paragraphs. There was no evidence that Dr Sale had seen the form of transfer executed by the plaintiff or indeed any form of transfer at all. If the plaintiff had testamentary capacity at the time she was seen by Dr Sale it is difficult to see how it could be said that nevertheless she was incapable of understanding the nature and effect of an immediate gift of land provided that relevant matters were clearly explained to her in simple language.

Mrs Page expressed the following opinions:
"Mrs Mollross presented gross impairment in her capacity for memory and reasoning. The level of her functioning in these respects was consistent with dementia, even allowing her possible pre–existing limited intellect and her sensory deficits. Further medical investigation would be necessary to determine the specific pathology involved.
Her inability to register and store more than 2 to 3 units of simple information, her tendency to confabulate and persevere with pre–existing themes, her seeming difficulty forming independent ideas and her reluctance to disagree, all suggest that she would have extreme difficulty assessing the full implications of an action such as transfer of ownership of her house and of understanding the legal documentation involved. Her reluctance to disagree suggests some inability to assert an independent opinion.
I would rate her memory and conceptual functioning at say, 2 on a scale of 1–20, where 1 represents the lower extreme of these mental functions in a dementing condition.
I am unable to assess Mrs Mollross' mental state retrospectively, thus I cannot say what her mental condition would have been at the time that she signed the transfer. However, the nature of the likely dementing conditions involved is probably insidious and progressive."

Subsequently Mrs Page was provided with a copy of the will executed by the plaintiff at the offices of Messrs Ogilvie McKenna and expressed the view that the plaintiff would not have been able to comprehend that document. The observation might be made that many persons not suffering from the plaintiff's disabilities might also have a less than perfect comprehension of that document. The relevant test in relation to the will and the transfer is not whether the person executing it had a perfect understanding of the meaning of the words employed but rather whether those words expressed the intentions of the maker sought to be given effect to by the relevant document.

Whilst I generally accept the evidence of Dr Sale and Mrs Page I am not persuaded that what they observed about the plaintiff replicated the plaintiff's mental condition on 26 October 1990. Although their evidence tentatively suggested that this may have been so, much of the other evidence of persons who saw the plaintiff at or about the relevant time, in particular Mrs Louise Mollross, Dr Randall and Mrs Gibbs, persuades me that when the plaintiff presented to Dr Sale and Mrs Page her mental state had deteriorated greatly compared with what it had been a year or so earlier. Dr Potter's evidence does little more than confirm the plaintiff's intellectual limitations which had been her lot all her life.

I am persuaded that for some considerable period of time prior to 26 October 1990 it was the plaintiff's desire that the defendants would take her house and that that desire was maintained at least until 12 November 1990. That desire was given effect to by the wills made by the plaintiff in 1988. I am satisfied that during the whole of that period there was a considerable degree of ill–feeling on the part of Mrs McGinniss, Mrs Butters and Mrs Gore towards Mrs Post. I infer that the plaintiff was conscious of that ill–feeling and apprehensive that her daughters would be extremely unhappy when they discovered the contents of her will after her death. She feared that they would take steps to challenge the will with a view to obtaining some benefit for themselves. I am satisfied that the plaintiff discussed those fears with the second defendant, that he suggested that a way to avoid a challenge to the will would be to effect an immediate gift of the house to the defendants, that the plaintiff gave some consideration to that and that she ultimately determined that she would effect such an immediate gift. I am satisfied that the plaintiff saw Mrs Louise Mollross in order to give effect to that determination, that the plaintiff conveyed instructions to that effect to Mrs Mollross, that Mrs Mollross sufficiently explained the effect of what the plaintiff was about to do and that the transfer executed by the plaintiff gave effect to her express wishes.

I reject the assertion that the plaintiff did not know the effect of the transfer executed by her. She was totally blind, but as she executed a transfer the effect of which had been sufficiently explained to her and which gave effect to her express instructions, that blindness was irrelevant. Whilst the plaintiff was suffering from a substantial hearing impairment, Mrs Louise Mollross' evidence satisfies me that there was effective communication of the effect of the transfer notwithstanding that impairment. The fact that the plaintiff was a diabetic had no relevant effect. I am not persuaded that at the time she executed the transfer the plaintiff suffered from poor memory to the extent that it was found by Dr Sale. I note that the plaintiff's memory appears to have been considerably better when she was seen by Dr Randall on 29 October 1990. For example she was able to tell Dr Randall, but not Dr Sale, the name of the Prime Minister. I am not persuaded that at the time she executed the transfer the plaintiff's ability to understand its effect was affected by any intellectual impairment then suffered by her, having regard to the terms in which its effect was explained by Mrs Louise Mollross. I am satisfied that the effect and contents of the memorandum of transfer were adequately and properly communicated and explained to the plaintiff by Mrs Louise Mollross. I do not accept that at the time that she executed the transfer the plaintiff believed that it was a document to assist the second defendant in obtaining a loan for an air–conditioning unit for his truck. The only evidence that the plaintiff ever thought that she was executing such a document came from the plaintiff herself. For reasons I have already expressed, I am unable to accept that evidence.

The plea of non est factum is concerned with the execution of the transfer in the sense that it relies upon there having been an insufficient understanding of the nature of the document at the time that it was executed. None of the matters alleged by the plaintiff to that end are made out. In any event it may be doubted whether the plea of non est factum could have availed the plaintiff, even if the factual assertions in support thereof had been made out. The effect of a successful plea of non est factum is that the document, in this case the memorandum of transfer, is at law void ab initio. As the transfer has been registered pursuant to the provisions of the Land Titles Act 1980, a conclusion that the transfer was void ab initio might have been of no assistance to the plaintiff. The defendants' title derives not from the transfer but from the fact of registration. The authorities and considerations which I canvassed in Co–Operative Property Developments of Australia Ltd (In liquidation) v Denver Glen Pty Ltd 94/1992 might be thought to lead to the conclusion that the mere voidness of the transfer would not entitle the plaintiff to any relief.

The plaintiff has pleaded undue influence and unconscionable bargain separately. In one sense a bargain entered into as the result of undue influence is but an example of one entered into as the result of unconscionable conduct on the part of the person seeking to retain the benefit of the transaction and seeking to resist the intervention of equity. The plaintiff relies upon the same facts for both pleas. Nevertheless, as the two matters have been pleaded separately, I will deal with them separately.

The concept of undue influence has its origin in equity. The common law of contract was concerned with the reality of agreement rather than matters which induced agreement. The concept of undue influence is not limited to contracts but extends to other transactions including gifts. As pleaded, it is somewhat difficult to understand precisely how the plaintiff asserts the existence of undue influence. In particular it is quite unclear as to whether it is alleged that there existed such a special relationship that it gave rise to a presumption of undue influence or whether the plaintiff is merely alleging actual undue influence. If the former, the onus is upon the defendants to rebut the presumption of undue influence once the special relationship is found to exist. If it is the latter, then the plaintiff carries the burden of proof in all respects in relation to this plea. Counsel did not direct their submissions to this question. I will assume that the Statement of Claim is intended to allege a relationship giving rise to a presumption of undue influence and, in the alternative, to allege actual undue influence.

There are many cases where particular relationships have and have not been found to give rise to a presumption of undue influence. But the categories of relationship giving rise to the presumption can never be considered to be closed as "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" (per Latham CJ in Johnson v Buttress (1936) 56 CLR 113 at 119).

It is appropriate to deal with the factual allegations made in support of the plea of undue influence. I accept that for almost two months prior to the execution of the transfer by the plaintiff she was residing with Mrs Post and was dependent upon her, but not upon either defendant, for accommodation and general care, although in the context of her staying on a rotational basis at the homes of Mrs Post, Mrs Butters and Mrs Gore. I find that some time prior to the execution of the transfer the second defendant did suggest to the plaintiff that she effect an absolute and immediate gift of her house to the defendants but in the circumstances as to which I have made findings of fact. Accepting as I do Mrs Louise Mollross' evidence as to the telephone discussion which she had with the plaintiff prior to 26 October 1990, I do not find that the plaintiff was taken to the office of Messrs Ogilvie McKenna without her being aware of the purpose of that visit, namely to effect an immediate gift of the house to the defendants. I find that Mrs Post played no part in the actual execution of the transfer at the offices of Messrs Ogilvie McKenna. It was executed by the plaintiff after she had made it quite clear to Mrs Louise Mollross that she wished to make an immediate gift of the house to the defendants and after there had been provided by Mrs Louise Mollross an adequate explanation of the effect of what the plaintiff was proposing to do. The plaintiff understood when she executed the transfer that thereby she was making an immediate absolute gift of her house to the defendants. I do not find that the plaintiff's visit to the offices of Messrs Ogilvie McKenna had been arranged by Mrs Post in any relevant sense. I find that the plaintiff was adequately informed of the nature and effect of the transfer. I find that the plaintiff had no independent legal advice in the sense of advice from a solicitor employed independently of the defendants.

I do not consider that the mere relationship between the plaintiff and the second defendant ought to lead to a presumption of undue influence. However, an actual special relationship of influence in the particular circumstances is capable of giving rise to the same presumption. This was explained by Dixon J in Johnson v Buttress (supra) at 134, in the following terms:
"The basis of the equitable jurisdiction to set aside an alienation of property on the ground of undue influence is the prevention of an unconscientious use of any special capacity or opportunity that may exist or arise of affecting the alienor's will or freedom of judgment in reference to such a matter. The source of power to practise such a domination may be found in no antecedent relation but in a particular situation, or in the deliberate contrivance of the party. If this be so, facts must be proved showing that the transaction was the outcome of such an actual influence over the mind of the alienor that it cannot be considered his free act. But the parties may antecedently stand in a relation that gives to one an authority or influence over the other from the abuse of which it is proper that he should be protected. When they stand in such a relation, the party in the position of influence cannot maintain his beneficial title to property of substantial value made over to him by the other as a gift, unless he satisfies the court that he took no advantage of the donor, but that the gift was the independent and well–understood act of a man in a position to exercise a free judgment based on information as full as that of the donee. This burden is imposed upon one of the parties to certain well–known relations as soon as it appears that the relation existed and that he has obtained a substantial benefit from the other. A solicitor must thus justify the receipt of such a benefit from his client, a physician from his patient, a parent from his child, a guardian from his ward, and a man from the woman he has engaged to marry. The facts which must be proved in order to satisfy the court that the donor was freed from influence are, perhaps, not always the same in these different relationships, for the influence which grows out of them varies in kind and degree. But while in these and perhaps one or two other relationships their very nature imports influence, the doctrine 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 ascendency 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. When he takes from that man a substantial gift of property, it is incumbent upon him to show that it cannot be ascribed to the inequality between them which must arise from his special position. He may be taken to possess a peculiar knowledge not only of the disposition itself but of the circumstances which should affect its validity; he has chosen to accept a benefit which may well proceed from an abuse of the authority conceded to him, or the confidence reposed in him; and the relations between him and the donor are so close as to make it difficult to disentangle the inducements which led to the transaction. These considerations combine with reasons of policy to supply a firm foundation for the presumption against a voluntary disposition in his favour. But, except in the well–recognized relations of influence, the circumstances relied upon to establish an antecedent relation between the parties of such a nature as to necessitate a justification of the transaction will be almost certain to cast upon it at least some measure of suspicion that active circumvention has been practised. This often will be so even when the case falls within the list of established relations of influence. Because of the presence of circumstances which might be regarded as presumptive proof of express influence, cases outside the list but nevertheless importing a special relationship of influence sometimes are treated as if they were not governed by the presumption but depended on an inference of fact."
On the facts as I have found them I am not persuaded that there was any special relationship of influence between the second defendant and the plaintiff giving rise to the presumption. I am not persuaded that there was any actual undue influence. The mere suggestion by the second defendant to the plaintiff that she could avoid controversy after her death, the possibility of which was concerning her, by immediately making the gift which she had in any event intended to make by will, does not persuade me that there was any actual undue influence. Whilst it meant that the plaintiff immediately lost any rights to her house that was in circumstances where she had not lived in it for some years, had no prospect of ever again living in it and had permitted it to remain unoccupied for most of the time since she last resided there.

If I am wrong about the absence of any presumption of undue influence, then there would be the question of whether such a presumption as does arise has been rebutted. It is appropriate that I deal with that on the assumption the facts of this case do give rise to a presumption of undue influence. In such event the plaintiff would succeed in her action unless the defendants established that the transaction was the result of a free exercise of the will of the plaintiff (see Johnson v Buttress (supra)). Whilst evidence that a person said to have been influenced received competent independent legal advice before entering into the relevant transaction commonly will be sufficient to establish that the transaction was the result of a free exercise of the will, such independent advice is not as a matter of law essential to establish that nor will the giving of such advice always be held to be sufficient (see Inche Noriah v Shaik Allie Bin Omar [1929] AC 127). As was said by Evatt CJ and Fogarty J in Re P's Bill of Costs (1982) 45 ALR 513 at 522 the "presence or absence of such independent advice has always been regarded as an important matter in the overall determination but not, in isolation, decisive." Their Honours then said:
"It is necessary and sufficient to establish that there was a full disclosure of all relevant circumstances before the transaction was entered into and that the other party fully understood the matter and consciously and deliberately entered into the contract."

I would adopt those passages as representing a correct statement of the law. I do not consider that the fact that Mrs Louise Mollross was not retained by the plaintiff independently of the defendants as being very significant in the circumstances of this case. Mrs Mollross' firm did not have any real established professional relationship with the defendants. Her firm had never before acted for the first defendant. Her firm had acted for the second defendant in relation to some matters in the past, although there was no suggestion that that fact was known to the plaintiff. Mrs Mollross acted as if she had been retained by the plaintiff independently of the defendants. She saw the plaintiff alone. She adequately explained to the plaintiff the nature of the proposed transaction and its effect. She made it perfectly clear to the plaintiff that she was free to proceed or not to proceed with the transaction. It seems to me that if Mrs Mollross had been employed independently of the defendants she would have acted in precisely the same way as she in fact acted. There was nothing about the circumstances in which Mrs Mollross gave her advice to the plaintiff which would have led the plaintiff to believe that she was receiving anything other than independent advice which left her perfectly free to proceed or not to proceed with the transfer. There was nothing in the advice given by Mrs Mollross to suggest that she was in any way serving the interests of the defendants. There was a sufficient disclosure to the plaintiff of all relevant circumstances prior to her executing the transfer. She fully understood the matter and consciously and deliberately executed the memorandum of transfer, intending thereby to absolutely dispose of all her right, title and interest in her house, knowing that the same there and then would become the absolute property of the defendants.

I turn to the plea of unconscionable conduct. The nature of the jurisdiction invoked by the plaintiff was explained by Deane J (with whom a majority of the members of the court agreed) in Louth v Diprose (HC, unreported 2 December 1992) at 16–17, in the following terms:
"It has long been established that the jurisdiction of courts of equity to relieve against unconscionable dealing extends generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party to the transaction with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that special disability was sufficiently evident to the other party to make it prima facie unfair or 'unconscionable' that that other party procure, accept or retain the benefit of, the disadvantaged party's assent to the impugned transaction in the circumstances in which he or she procured or accepted it. Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable: 'the burthen of shewing the fairness of the transaction is thrown on the person who seeks to obtain' or retain the benefit of it."
Whilst the plaintiff suffered from disabilities, it does not follow that she was under a special disability in dealing with the defendants. I am not persuaded that the transfer was a transaction which occurred in circumstances where the plaintiff was under such a special disability that it resulted in an absence of any degree of equality between her and the defendants. For some years prior to the transfer the plaintiff had been determined to ensure that the defendants ultimately have her house. This is not a case where the plaintiff was in the position that she was "unable to make a worthwhile judgment as to what was in [her] best interest", in the words of Mason J in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461. The plaintiff had long made up her own mind that the defendants were to have the house. To ensure that her wishes were given effect to, a transfer there and then was not unreasonable in all the prevailing circumstances. The plaintiff feared that a will making such a provision would be challenged by three of her daughters. She wished to avoid such a challenge. In circumstances where she was old and had no further prospect of living in her house, the making of an immediate gift was a not unreasonable way of avoiding such a challenge.

I could not but feel that the real plaintiff was not before the Court and that unwittingly the plaintiff had become a mouthpiece for Mrs McGinniss, Mrs Butters and Mrs Gore. What the plaintiff said in evidence broadly corresponded to what they would suggest the position to be. They have had more than two years to exert their influence over the plaintiff. Her mental state has seriously deteriorated over that period. I am satisfied that as at October 1990 the plaintiff, whilst a simple person suffering from various infirmities, was well able to make up her mind as to what she wished to do. Having been exposed to all her daughters, who had different views, she was able to and did make up her own mind.

It follows from my reasons that the plaintiff's claim does not succeed and there will be judgment for the defendants.