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Wardle v Wardle

Wardle v Wardle

Case [2021] NSWSC 1529 3 December 2021

Unconscionable Conduct

Independent Legal Advice

Trusts & Equity

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wardle v Wardle [2021] NSWSC 1529
Hearing dates: 1 and 2 June 2021
Date of orders: 3 December 2021
Decision date: 03 December 2021
Jurisdiction: Equity
Before: Slattery J
Decision:
See paragraph [213].

Catchwords:
EQUITY – unconscionable bargains – undue influence - elderly person gives power of attorney to her adult daughter, the defendant – the defendant/daughter lives with her mother – using the power of attorney the daughter claims she assists her mother to sell her house, before relocating the mother into a nursing home – daughter applies the funds from the sale of the mother’s house property to purchase her own property, claiming that the funds were an inter vivos gift from the mother to her – after the mother’s death her will leaves her estate equally to the defendant and the plaintiff but little remains in the estate – the son challenges these transactions and claims a constructive or resulting trust on behalf of the estate over the defendant’s property acquired with the proceeds of sale of the mother’s house – whether the sale of the mother’s property and application of the sale proceeds by the daughter was improvident – whether the mother received independent legal advice – whether the mother was suffering from dementia – whether the mother was dependent upon the daughter – whether the mother was in a position of special disadvantage in relation to the daughter at the time of the transactions – whether the transactions resulted from the unconscionable conduct or actual undue influence of the daughter over the mother.
SUCCESSION – Family Provision – competing claims by two adult children for provision from the estate of their deceased mother under Succession Act 2006, Chapter 3 – the mother’s will leaves her estate to her adult son and daughter – the deceased’s estate is minimal, as a result of the sale of the mother’s principal asset, her residence, six months before her death – not in issue that the proceeds of sale of the mother’s residence are notional estate – the son brings proceedings for further provision from the mother’s estate and notional estate – the mother gifted the son a property during her lifetime but he sold it to meet pressing financial obligations – whether the son requires further provision for his proper maintenance, education or advancement in life – the daughter brings a contingent claim for further provision for the mother’s estate, in the event that property purchased with the sale proceeds of the mother’s residence is held in trust for the estate – whether the daughter requires further provision from the estate for her proper maintenance, education or advancement in life.

Legislation Cited:
Civil Procedure Act2005, s 56
Guardianship Act 1987
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, rr 11.1, 11.2, 11.3
Powers of Attorney Act 2003, ss 12(2), 13(2)
Succession Act 2006, Chapter 3, ss 59(1)(c), 60, 91
Uniform Civil…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wardle v Wardle

Details

AGLC: Wardle v Wardle [2021] NSWSC 1529
Case: [2021] NSWSC 1529
Decision Date: 03 December 2021

CaseChat Overview and Summary

In Wardle v Wardle, the respondent, as the son of the deceased, brought an action against his sister, the appellant, regarding the estate of their late mother. The son contested the sale of their mother’s principal asset, her residence, and the subsequent use of the proceeds by the appellant to purchase property for herself. He claimed a constructive or resulting trust on behalf of the estate over the property acquired by the appellant, asserting that the transactions were improvident and resulted from undue influence exerted by the appellant over their mother. The son also sought additional provision from the estate under the Family Provision Act. The appellant, in turn, brought a contingent claim for further provision if the property she purchased was held in trust for the estate.

The legal issues before the court involved determining whether the appellant exerted undue influence or unconscionable conduct over their mother when she executed a power of attorney, which the appellant used to facilitate the sale of their mother’s residence. The court also had to consider whether the mother received independent legal advice, whether she suffered from dementia, and whether she was in a position of special disadvantage at the time of the transactions. Additionally, the court needed to decide whether the son required further provision from the estate for his proper maintenance, education, or advancement in life, and whether the appellant required further provision if the property she purchased was held in trust for the estate.

The court found that the appellant did exert undue influence over their mother, who was suffering from dementia at the time of the transactions. The mother was in a position of special disadvantage due to her dependency on her daughter for care and support. The court held that the appellant’s actions in using the power of attorney to sell the mother’s residence and applying the proceeds for her own benefit were improvident and resulted from undue influence. Consequently, the court ordered that the property purchased by the appellant be held on trust for the estate. Regarding the Family Provision Act claims, the court determined that neither the son nor the appellant required further provision from the estate.

The court's final orders included holding the property purchased by the appellant on trust for the estate, dismissing the son’s claim for further provision, and dismissing the appellant’s contingent claim for further provision.

Orders