Western v Male - [2011] SASC 75

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
WESTERN v MALE
[2011] SASC 75
Judgment of The Honourable Justice Nyland
5 May 2011
MENTAL HEALTH - MANAGEMENT AND ADMINISTRATION OF PROPERTY - PROTECTION ORDERS
Application by plaintiff’s daughter for protection order with respect to defendant mother’s estate – defendant an elderly woman currently residing in an aged care facility – whether defendant subjected to undue influence in execution of Powers of Attorney and Wills in favour of her son – reliance by some medical practitioners on unfounded allegations of misconduct by plaintiff - whether defendant had testamentary capacity – finding that defendant has a cognitive impairment – son exercised undue influence with respect to a series of transactions and management of bank accounts – situation likely to continue in the future – defendant unable to manage her financial affairs – Protection Order made and Public Trustee appointed manager of estate.
Aged and Infirm Persons Property Act 1940 ss 7 and 10, referred to.
Re M (1965) NZLR 286; Porker v Porker [2007] SASC 217; Whereat v Duff [1972] 2 NSWLR 147; Johnson v Buttress (1936) 56 CLR 113, discussed.
H v Nominal Defendant [1997] QSC 233, considered.

WESTERN v MALE
[2011] SASC 75
`
NYLAND J:

The plaintiff, Jillian Louise Western (“Mrs Western”) has applied to the Court for a Protection Order with respect to the estate of the defendant who is her mother, Maisie Olive Male (“Mrs Male”). The application is made pursuant to s 7 Aged and Infirm Persons Property Act 1940 (“the Act”). Section 7 sets out the circumstances under which a protection order may be made:
(1)Where it is made to appear to the satisfaction of the court that any person is, by reason of age, disease, illness, or physical or mental infirmity-
(a)     unable, wholly or partially, to manage his affairs; or
(b)    subject to, or liable to be subjected to, undue influence in respect of his estate, or the disposition thereof, or of any part thereof; or
(c)    otherwise in a position which in the opinion of the court renders it necessary in the interest of that person or of those dependent upon him that his property should be protected as provided by this Act,
the court may make a protection order in respect of the estate of that person.
An order is also sought pursuant to s 10 of the Act that the Public Trustee be appointed as the manager of Mrs Male’s estate.
The plaintiff is seeking the order as she believes her mother is unable to manage her affairs. However, the primary submission of the plaintiff is that Mrs Male has been subject to undue influence with respect to her estate by her son, Phillip Myers (“Mr Myers”), or in the alternative that there is a likelihood that she will be subject to undue influence by him, in respect of her estate.
Mrs Male has opposed the making of the order as she believes that she is well able to manage her financial affairs and denies the existence of any undue influence by her son, Mr Myers.
Witnesses
In addition to the plaintiff and the defendant, the following witnesses gave evidence at the trial:
Family Members:
Lara Townsend Gun  Daughter of Denise Gun
Georgia Townsend Gun                Daughter of Denise Gun
Suzannah Elise Sheldon                Daughter of Mrs Western
Phillip Wentworth Myers             Son of Mrs Male
Medical Witnesses:
Dr Jane Hecker  A gerontologist who saw Mrs Male on 5 August 2010 and provided two reports to the Court.
Dr Margaret McKenzie                   A general practitioner who treated Mrs Male between 2004 and early 2006 and from 2009 to early 2010.
Dr Jennifer Young  A general practitioner who treated Mrs Male between 3 August 2006 and 19 May 2009.
Dr Alan Cotton  A psychiatrist who first interviewed Mrs Male on 17 November 2009 prior to the Guardianship Board hearing and he saw her on a regular basis thereafter. Dr Cotton provided three reports to the Court.
Dr Jonathon Symon  A psychiatrist who saw Mrs Male on 13 September 2010 and 18 January 2011 and he provided two reports to the Court.
Other witnesses:
Meredith Ann Harvey  A family friend.
Exhibits
P1Plaintiff’s Tender Book. This includes the progress notes with respect to Mrs Male made by staff at the Nursing Home between 19 August 2009 and 7 April 2011.
P2Two reports of Dr Hecker dated 5 August 2010 and 19 November 2010.
P3Letter from Dr McKenzie to Dr Hecker dated 28 October 2009.
D4Clock face drawing made by Mrs Male during her interview with Dr Hecker.
P5Adenbrooke’s Cognitive Examination test results obtained by Dr Hecker.
P6Affirmation of Lara Townsend Gun dated 14 December 2009.
P7Affidavit of Suzannah Elise Sheldon dated 14 December 2009.
P8Affidavit of Meredith Ann Harvey dated 11 December 2009.
P9Affidavit of Jillian Louise Western dated 8 December 2009, together with following Exhibits:
oJLW-1        Will of Maisie Olive Male dated 21 November 2007.
oJLW-2        Letter from Dr Heddle to Dr Wang and Dr Young dated 23 June 2009.
oJLW-3        Letter from Dr Gieroba to Dr McKenzie dated 3 July 2009.
oJLW-4        Letter from Department of Health & Ageing to Mrs Male dated 28 July 2009 approving Mrs Male’s eligibility for low-level care in a nursing facility.
oJLW-5        Copy of Enduring Power of Attorney dated 21 September 2009 appointing Phillip Myers as sole attorney.
oJLW-6        Copy of Enduring Power of Attorney dated 6 May 1993 appointing Phillip Myers and Jillian Western as joint attorneys.
oJLW-7        Copy of application to Guardianship Board.
oJLW-8        Undated report of Dr Young.
oJLW-9        Letter from Dr Crawford to Guardianship Board dated 17 November 2009.
oJLW-10      Letter from Dr Cotton to Guardianship Board dated 18 November 2009.
P10 Section B of Guardianship Board Application – Medical & psychological report prepared by Dr McKenzie dated 4 November 2009.
P11Undated report of Dr Young.
D12Three reports of Dr Cotton dated 18 November 2009, 2 July 2010 and 7 September 2010.
D13Two reports of Dr Symon dated 29 September 2010 and 24 January 2011.
P14Bundle of bank statements of Retirement Account for period 12 July 2008 to 12 January 2011 (Statements 4-8).
P15Bundle of bank statements of Retirement Account for period 1 January 2009 to 30 June 2009 (Statements 67-72) and for period 27 February 2010 to 31 March 2011 (Statements 81-93).
D16Affidavit of Maisie Olive Male dated 5 January 2010.
D17Copy of Will of Maisie Olive Male dated 20 January 2011.
D18Affidavit of Phillip Wentworth Myers dated 5 January 2010.
Section 9 of the Act
At the request of Mrs Male and both counsel, on 13 April 2011 I interviewed Mrs Male in chambers in the absence of counsel and anyone else involved in the case.
Transactions
It is the plaintiff’s case that Mrs Male has been the subject of undue influence with respect to the execution of the following documents:
1.     Power of attorney dated 21 September 2009.
2.     Medical power of attorney dated 13 October 2009.
3.     Power of attorney and power of guardianship dated 11 December 2009.
4.     Will dated 11 December 2009.
5.     Will dated 9 December 2010.
6.     Will dated 20 January 2011.
In order to resolve the issues in this case, it is necessary to examine closely the events which surrounded the execution of the impugned documents. In so doing, I have had particular regard to the notes of the Nursing Home which are contained in Exhibit P1 and which provide some independent evidence of the actions of the various parties at relevant times.
Chronological History
Background
Mrs Male was born in 1920. At the date hereof she is almost 91 years old. She married Dalton Wentworth Myers in 1942. There were three children of that marriage, namely Denise [Gun] born in 1945, Jillian [Western] born in 1950 and Phillip Myers born in 1951. Denise had three children, namely Danielle, Lara and Georgia. Jillian has a daughter Suzannah. Phillip has two children, Toby and Alexandra.
Mrs Male’s first husband died in 1960 and she subsequently married Ernest Male in 1966. Mr Male died in the year 1990. On 6 May 1993 Mrs Male executed an enduring power of attorney in favour of her two surviving children, ie Mrs Western and Mr Myers.[1] On 20 October 2000 she executed an enduring power of guardianship in favour of both of them.[2]
[1] Exhibit P9 - JLW 6.
[2] Exhibit P1, p 4A.
On 21 November 2007 Mrs Male executed a Will in which she appointed Mr Myers and Mrs Western as joint executors. She left all her jewellery and items of personal adornment to Mrs Western and the balance of the estate was divided (a) as to one third to Phillip, (b) as to one third to Jillian and (c) as to one third for such of her grandchildren, Danielle, Lara and Georgia as survived her and attained the age of 18 years and if more than one in equal shares.[3]
[3] Exhibit P9 - JLW 1.
Move to a Nursing Home
Mrs Western said that in about 2006 her mother began to experience difficulties managing at home. At that stage she was living at Somerton Park. That had been her home since 1947. However, Mrs Western believed that her mother was not coping and a point was reached when she believed her mother could not continue to live alone. Dr Young was Mrs Male’s general practitioner from 3 August 2006 until 19 May 2009. She gave evidence about a great number of health problems for which Mrs Male was treated and in an undated report,[4] prepared for the benefit of the Guardianship Board, she expressed the opinion that Mrs Male could not safely continue to live independently.
[4] Exhibit P11.
In 2008 Mrs Male had a number of admissions to hospital with what were called heart attacks. On 19 June 2009, she was admitted to Ashford Hospital with chest pain. Dr Gieroba in a report dated 3 July 2009[5] diagnosed Mrs Male as suffering from acute coronary syndrome. He said that she had a period of confusion in hospital but on some days she was very good and when he performed a mini mental state examination (“MMSE”) the score was 29 out of 30.
[5] Exhibit P9 - JLW 3.
On 29 June 2009 she was discharged to a Nursing Home at Victor Harbor for respite. At that time, Mrs Western was living at Port Elliot and working at the South Coast Hospital which was near the Nursing Home. Mrs Male remained at Victor Harbor for about two weeks but then, apparently following a visit from her son Phillip, she decided to return to her home at Somerton Park. However, Mrs Western told her mother that she would visit each fortnight, take home her laundry and pay her accounts, as apparently had been her practice in the past. On 23 July 2009 Mrs Male was assessed by the Aged Care Assessment Team (“ACAT”). The application for that assessment, which is signed by Mrs Male, was for residential respite care and a community care services package. Mrs Male was assessed as requiring low level residential care.
On 1 August 2009 Dr Orsillo, who was in the same practice as Dr Young, saw Mrs Male together with Mrs Western and noted that Mrs Male had a recent myocardial infarct, was not coping, was having panic attacks, becoming confused and not managing her medication.[6]
[6] Transcript p 129.
On 8 August 2009 Mrs Male was admitted to the Repatriation Hospital and the notes[7] record that she was having difficulty coping at home. She had been seen at Ashford but was sent home from there in a taxi and thought she was having a heart attack. The notes record that she had several occasions of chest pain during this stay which were concluded to be contributed by her anxiety as well as reflux disease.
[7] Exhibit P1, p 35.
On 19 August 2009 Mrs Male was discharged to a Nursing Home[8] and she has been a resident there ever since. The move to the Nursing Home meant that Mrs Male’s home would have to be sold to meet the payment of the Nursing Home administration bond of $350,000. Mrs Western was absent from the State for a short period but returned on 24 August 2009. On 30 August 2009, the Nursing Home notes[9] record an argument taking place between Mrs Western and Mr Myers in Mrs Male’s room. It was described as a “heated” verbal altercation.
[8] Ibid, pp 35 and 177.
[9] Ibid, p 180.
Mrs Western said after the decision was made to sell the house her mother told her that she wanted to loan Phillip $200,000 to pay off the mortgage at his workshop. The argument referred to in the Nursing Home notes related to her expression of concern to her brother about that and a suggestion by her that their mother’s money be managed by someone independent to avoid any problems with the pension. However, she said that Mr Myers wanted to do it all himself and not have anyone else involved.[10]
[10] Transcript p 141.
Sale of the house
Mrs Western said that after the move to the Nursing Home, her mother decided to sell her home.[11] However, Mrs Male maintained the decision to move her into the Nursing Home was made by her daughter and was made hastily and she was unhappy about the sale.[12] In his affidavit[13] Mr Myers also said the decision to move Mrs Male to the Nursing Home was made by Mrs Western and not their mother. Mr Myers said however that in due course he accepted his sister’s advice that Mrs Male was not coping at home and eventually did not oppose the move.
[11] Exhibit P9 at [31].
[12] Exhibit D16 at [8].
[13] Exhibit D18 at [9].
On 31 August 2009 an Agency Agreement for the sale of the house was signed with Richard Williams of L.J. Hooker, with an auction date fixed for 3 October 2009. Mrs Western and Mr Myers each attributed the selection of Mr Williams to the other, but nothing turns on that. Each of them was present, together with Mrs Male, when the agreement was signed and there was no suggestion by anyone of any improper conduct by Mr Williams.
Mrs Western said that she was anxious to expedite the sale at that stage because of the bond her mother had to pay to the Nursing Home which was incurring interest at a high rate. In addition, she was conscious of her mother being upset about selling her home and she believed that it was in her mother’s best interests to finalise that as quickly as possible.
A proposal was made at this meeting for sale by auction and although Mr Myers maintained that he only agreed to sale by auction after some protest he said he did not ultimately oppose it, although he apparently continued to maintain his view that there was not any need for haste. However it is not disputed that at about this time there was a discussion between Mr Myers and his mother about a loan to him from the proceeds of sale. Mr Myers could not say exactly when that discussion took place but he was adamant that the proposal to loan him money emanated from his mother and not the other way around.
The Nursing Home notes[14] record that on the evening of 31 August 2009, ie after the discussion with Mr Williams about the sale arrangements, Mrs Male was anxious with respect to the sale and dividing her personal property and she stated:
… son wants quick sale of house to access monies to purchase property with big shed for his family. Maisie spent considerable time (couple of hrs) with son on phone tonight.
[14] Exhibit P1, p 181.
On 1 September 2009 there is a note[15] made at ll.00 am that Mrs Male was going to her home that day to sort out her possessions and that daughter Jill would bring her back. However at mid-day there was a further note:[16]
Maisie did not leave until 1200hrs. Son and lawyer visited to "sort out affairs". Explained to son (Phil) that Jill (daughter) is waiting for Maise at Maisie's home to sort out all her possessions. Son went on to say "I don't care what Jill is doing, I have organised for mum to sort out her affairs with the lawyer today and Jill can bloody wait." Son went on to say a few things about Jill that lead me to believe there are big family issues and family already feuding about financial issues. RN Beccy notified who then notified CNM A Hook who advised Bec to ring daughter to tell her that mum will be delayed due to son and a man visiting.
[15] Ibid.
[16] Ibid, pp 181-182.
It appears that thereafter there were some occasions when Mrs Male returned to her home to sort out her belongings. On 8 September 2009 it is recorded that she was teary about that.[17]
[17] Ibid, p 183.
Power of Attorney dated 21 September 2009
On 21 September 2009, Mrs Male saw Susan Davies, a solicitor at Scales & Partners and executed a fresh enduring power of attorney in favour of her son, Phillip. Mrs Male said in her affidavit[18] that after she moved to the Nursing Home she had asked Jill to return some folders to her containing her financial records as she wanted to continue to manage her financial affairs but her daughter initially refused to do that. Mrs Male said that due to her daughter’s behaviour, she had lost confidence in her and decided to change her power of attorney.[19]
[18] Exhibit D16 at [10].
[19] Ibid at [11].
Mrs Western in evidence agreed that she did have an argument with her mother at some stage about returning some papers to her, but said she did not consider there was any urgency about it and she had in any event been paying all her mother’s bills to that date and looking after her finances. She was also concerned that after the sale of the house her mother might make some unwise decisions about financial matters which would affect her pension.
On 20 September 2009 the Nursing Home notes record:[20]
Son Phillip advised staff are to keep an eye on mother after family visits and if she is upset to contact him.
[20] Exhibit P1, p 184.
And a further note:
I visited Maisie to confirm previous conversation. Maisie in full support, daughter Jill is upsetting her and is grateful Phillip is there to protect her interests.
This note appears to coincide with the period during which Mrs Western was preparing Mrs Male’s house for sale and packing up her belongings. Mrs Male said she complained to Mrs Western about her sister Coralie McCutcheon going through the house and picking out items for her own use and she told Mrs Western she did not want her sister there.[21] In his affidavit[22] Mr Myers referred to this and said his mother was angry about a set of kitchen scales which had been given to Coralie which she had intended to give to his daughter, Alexandra.
[21] Exhibit D16 at [9].
[22] Exhibit D18 at [11].
When Mrs Male gave evidence about the reason for the change of the power of attorney she said that she was not happy with her daughter at this time and was angry at the way in which she was managing her life. The possibility is that part at least of Mrs Male’s motivation in making the change was her distress at having to leave her family home and move to the Nursing Home as well as parting with some of her possessions all of which she blamed on her daughter.
On 24 September 2009 Mrs Male underwent a cognitive assessment at the Nursing Home and was described as having a “mild cognitive impairment”.[23]
[23] Exhibit P1, p 45.
On 29 September 2009, the notes record:[24]
Went out for tea to hotel with son. Maisie had a visit from her real estate agent and is feeling a bit low re: upcoming auction of her house.
[24] Ibid, p 185.
The Scales & Partners’ account
As it happened, on 29 September 2009, Mrs Western received an account from Scales & Partners[25] which related to the new power of attorney. This was the first that Mrs Western knew of it. Mrs Western said in evidence that she rang her mother about it and her mother responded:[26]
… ‘Phillip made me do it, you know’.
[25] Ibid, p 115.
[26] Transcript p 144.

Mrs Western maintained that she did not upset her mother in this telephone call. Mrs Western said it was a brief phone call but her mother was getting disturbed because the auction was coming up and she eventually told her mother that she would leave further discussion about the power of attorney until after the auction.
Mrs Western did however phone her brother to discuss it with him and her evidence of that conversation is as follows:[27]
A.     I said ‘Are you packed ready to go for your holiday?’ and he said ‘Yes’. I said ‘Is there something that you need to tell me?’, he said ‘No’. I said ‘Well I’ve received an account from Susan Davies, what’s this all about?’ because it didn’t actually say that I had been taken off, and he said ‘Mum’s decided that I have to have the power for everything’ and I said ‘But why?’ and he said ‘She just wants it’, and I said ‘Well we have managed everything, we have not ever had disagreements about anything to do with her affairs’, I did, you know, all the work, he always agreed that was all right, so why now? And I was really disturbed, really really disturbed. And he just went off at me. He said some pretty awful personal things.
Q.     Can you just constrain yourself to what he said.
A.     He said that it wasn’t going to be changed back, that that’s how it was and I could just butt out.
[27] Ibid, p 143.
However, Mr Myers’ evidence was that Mrs Western was highly agitated in the course of this phone call. He said he subsequently received a phone call from the Nursing Home saying that Mrs Male was crying inconsolably and they had asked for his help. He said that when he arrived at the home, Mrs Male was still crying inconsolably and she complained of an extremely abusive phone call from Jillian and her daughter Suzannah. Mr Myers said that as a result, he immediately took Mrs Male back to stay with him at his house in Coromandel Valley. Mr Myers was unable to say exactly when this took place, but he agreed that it was before the auction which took place on 3 October 2009. Mrs Males’ evidence in her affidavit about this incident mirrors what Mr Myers had to say, although she appears to fix the date by reference to the police visit which, as I understand the matter, occurred after the Guardianship Board hearing. However, there is no record in the Nursing Home notes during the relevant period of Mrs Male being in such an extreme state of distress, nor a phone call being made to Mr Myers for his assistance.
On 30 September 2009 Mrs Male underwent another depression assessment at the Nursing Home and the notes record:[28]
Gets very anxious when both children visit at same time, even when they visit singularly. Thinks family are giving her possessions away to people she doesn’t want to have them. This occurs 4 - 5 times a week. Anxiety can cause her chest pain.
[28] Exhibit P1, p 51.
Mrs Male was again assessed as having a mild cognitive impairment.[29]
[29] Ibid, p 41.
Auction of property
On 3 October 2009 the auction took place. Mr Myers was not present as there had been a clash between the date fixed for the auction and some arrangements for him to take his children on an interstate holiday. It appears that he arranged for his friend, Lindsay Simpson, to attend in his place. Mrs Western said that she believed that Mr Simpson collected Mrs Male from the Nursing Home, as Mrs Western was at the house getting it ready for the final open. According to Mrs Western, Mr Simpson stood by her mother throughout the auction. He had his phone turned on and was in contact with her brother throughout and walked around wherever her mother was. Mrs Western said at one stage she asked Mr Simpson to leave but he told her that Mr Myers had given him orders to stay by their mother at all times and not allow her to talk to anyone alone.
Mrs Western’s recollection was that the house did not reach the reserve price and when it was passed in, her mother, Mr Simpson and Mr Williams went into the house and she was excluded, as was everybody else. When they emerged, Mrs Western was told that the house had been sold with a 90-day settlement. The 90-day settlement caused Mrs Western considerable concern, particularly in view of the debt accruing on the Nursing Home administration bond.
Further discussion about the power of attorney
Mrs Western said that on the auction day she had a further discussion with her mother about the power of attorney and, despite what may have occurred in any phone calls before then, that discussion appears to have been amicable. Mrs Western said her mother told her that:[30]
… she didn’t understand what she had done and that she wanted to change it because she hadn’t wanted to change it in the first place, that she felt pressured to do so and she wanted to change it back …
[30] Transcript p 146.
Mrs Western said she had no knowledge of what was happening with respect to the house. However she was eventually told that it had sold for the sum of $638,000. That apparently was $28,000 more than she had initially been led to expect by Mr Williams and she thought it was a fair price.
Mrs Western’s evidence that her mother told her that she wanted to change the power of attorney back to what it was previously is supported by the evidence of Lara Gun[31] who said that her grandmother asked her what it meant and said words to the effect of:
I think I have done the wrong thing and should change it back.
[31] Exhibit P6 at [5].
That Mrs Male had a concern about what had occurred with respect to the power of attorney is also supported by the record in the Nursing Home notes on the auction night:[32]
Resident requested to see someone that could get her an independent person (other than her family) to look after her affairs. Have suggested social worker.
[32] Exhibit P1, p 185.
On 4 October 2009 there is a further note:
Continued concern by Maisie re in-fighting between son/daughter and family.
As a result of these concerns it appears that arrangements were then made for a social worker to see Mrs Male. On 6 October 2009 Penny Jacomos, a social worker, saw Mrs Male and she recorded:[33]
Met with Mrs Male and daughter, Jill Western. Issues involving newly-drawn up EPOA with son, without Jill’s knowledge, with lawyer. Mrs Male distressed and didn’t fully understand the implications of what she did. She now wants a family meeting to resolve the issues. Plan 1: Mrs Male to ask son Phillip to contact SW on mobile re family meeting. 2: Daughter Jill has SWs mobile to provide update. 3: Reassured Mrs Male that problems have solutions and she should look forward to a time without any distress. 4: Daughter and Mrs Male to contact lawyer. (emphasis in original)
[33] Ibid, p 186.
On 9 October 2009, a further conversation took place between Donna Cox, the Manager of Residential Care at the Nursing Home, and Mrs Male about the power of attorney and Mrs Male’s proposal to loan money to her son from the sale of the house. That is recorded in a file note dated 13 October 2009[34] as follows:
… I spoke with Maisie Male following an email to the [Nursing Home] Social Worker … advising Maisie would like to speak to someone independent …
In view of my discussion with Maisie after her son’s visit I was concerned for Maisie as I wondered if she had realised the impact of changing P/Att from both children to son entirely. I visited Maisie and she was clearly distressed about the impact this decision had on Jill. Maisie stated several times to me she did not fully understand the enormity of her decision and she wanted to die. ‘I love both my children and don’t want to hurt either of them’. She also felt that everybody was hovering over her for her money. Maisie spoke at length about what would happen to her money after she died, however son Phillip wanted to borrow some money from her after the house was sold for his own mortgage and some for Jill’s mortgage. I tried to explain to Maisie she may need to get some financial advice as this could affect her pension. Maisie did not seem to grasp what I had to say or the implications of lending her money. Maisie clearly stated she wanted some independent advice.
[34] Ibid, p 117.
According to the note, Donna Cox then spoke to Mrs Western and there was a discussion about the management of Mrs Male’s affairs which included arranging for Mrs Male to see someone from Aged Rights Advocacy Service (“ARAS”) and to have a family meeting to sort out these matters.
Medical power of attorney dated 13 October 2009
On 13 October 2009 Donna Cox had another discussion with Mrs Male about the power of attorney, in which Mrs Male indicated her reluctance to sign a medical power of attorney. The note about that is as follows:[35]
… following reading progress notes from the evening before and how distressed Maisie was following Son’s visit and daughter’s phone call I visited Maisie with Andrew Hook to find Maisie sitting on her bed tearful. …
Maisie again stated she did not realise the enormity of what she had done regarding the power of attorney and wanted to speak to some-one independently. Maisie rang her daughter Jill and requested I speak to her – Jill was appreciative of our concern and support for mother and stated she wanted some-one independent to care for Mum’s finances she did not have the energy to deal with her brother.
Andrew and I discussed ARAS and Maisie was happy to talk to some-one from there. Maisie stated she was going out with her son to sign for ?medical power of attorney this afternoon but she did not want to go but felt she could not tell him. I said I would ring and advise him – Maisie left the room as she could not bear to be there whilst I made the call. I spoke to Phillip who was not happy about this and blamed his ‘interfering’ sister. I stated I could not get involved in family dynamics but acting in the interests of Maisie and her request, he launched into his grievances about his sister. (Emphasis added)
[35] Ibid.
However, Donna Cox indicated to Mrs Male that she would follow up an arrangement with ARAS. It appears that Jane Northey of ARAS then visited Mrs Male on the afternoon of 13 October 2009. The note of that visit confirms that at that stage Mrs Male was still anxious to have an independent person manage her affairs. The note says:[36]
Maisie was visited today by Jane Northey – ARAS ph 8232 5377. Jane outlined role of ARAS and explained options available to her. Maisie authorised Jane to speak to Peter Golding, Public Trustee, and set up a meeting to learn about having her finances managed independently. Jane supports memory testing and requests referral to RAH Memory Clinic.
[36] Ibid, p 188.
As I understand the matter, the family meeting to resolve issues was then set for 20 October 2009.
Notwithstanding the very clear expression in the note of 13 October 2009 about Mrs Male’s attitude to a new medical power of attorney, Mrs Male on the same day, executed one in favour of her son, Phillip.[37] Curiously, the document which was signed included Mrs Western as an alternate but is not signed by her and it is not clear whether Mrs Male appreciated that was the case. Mr Myers could not explain why that was so, but he said he had a feeling Mrs Western had refused for some reason. There is no evidence as to when the document was prepared but it was signed on the day Mr Myers returned from his holiday in Queensland. Mr Myers was unable to give any explanation as to why it had to be signed on that particular day. There is no evidence as to who prepared the document, which was not signed at a solicitor’s office but was executed in the presence of a JP, a Mr Nicholson, who Mr Myers said was a friend of the family.
[37] Ibid, p 1.
The following day, ie 14 October 2009, Dr McKenzie saw Mrs Male at the Nursing Home. Dr McKenzie had taken over as Mrs Male’s GP when she went into the Nursing Home. Dr McKenzie recorded a note that:[38]
Mrs Male is unfortunately involved in a very difficult situation with her two children. Apparently she has changed her power of attorney from joint power to favour her son. As she was under severe apparent distress at the time, her daughter has made an appointment for Mrs Male to be assessed by the mental health services for the elderly but it may be … that Mrs Male would be found not fit to make a legal decision. Subsequent to that assessment the family will have to consult the guardianship issue, and today Mrs Male was less distressed, as her son had returned from Queensland, and her daughter had spoken to her by phone, and she had had no panic attacks and there was no change in her medication.
[38] Transcript p 113.
At about this time an arrangement was made for Mrs Male to visit Mrs Western for lunch at Port Elliot. That visit was to be on Sunday, 18 October 2009. A friend, Ms Harvey, was also invited to the lunch. Ms Harvey said in evidence that on 17 October 2009, she rang the Nursing Home to speak to Mrs Male about the arrangements to drive her down to Port Elliot the following day. Ms Harvey said that Mr Myers answered the phone and indicated that he and his mother were eating. Ms Harvey said she would phone back later. However before she could return the call, Mr Myers rang and told her that Mrs Male did not want to go on the trip the next day nor to the meeting that had been arranged for family mediation. Ms Harvey said Mr Myers then handed the phone to Mrs Male, who said:[39]
No dear I don’t want to go tomorrow nor to the meeting on Tuesday.
[39] Exhibit P8 at [9].
Ms Harvey then passed this message on to Mrs Western, but Mrs Western urged her to ring her mother again.
Ms Harvey said she then rang Mrs Male at about 9.15 on the Sunday morning at which time Mrs Male said she wanted to go to the lunch but she asked that Ms Harvey collect her immediately. Mrs Male said she did not want Phillip ringing and she did not want to tell him that she had changed her mind and that she was going.[40] Ms Harvey said that she then collected Mrs Male and drove her to Mrs Western’s house at Port Elliot.
[40] Transcript p 98.
Ms Harvey said that on the journey to Port Elliot Mrs Male said words to the effect of:[41]
I’m upset at all of this. I feel I’m being made to choose between the children … I’m not happy about changing the arrangement but Phillip has said if it was changed back again he would ruin Jill professionally, that he would move interstate and I would not see him or his children again.
[41] Exhibit P8 at [13].
She said that Mrs Male also raised the topic of a loan which she understood was from Mrs Male to Phillip:[42]
Mrs Male stated words to the effect that she was not happy about loaning monies to Phillip preferring to put it in the [bank] “like I’ve always done”. Mrs Male also mentioned that she would be happy for James Hooper who was a chartered accountant married to Danielle Hooper, a granddaughter of Mrs Male, to look after her money.
[42] Ibid.
Ms Harvey said in evidence[43] that Mrs Male volunteered this information to her on the drive down and she did not specifically raise it with Mrs Male because she did not want any upset. Ms Harvey said she did not mention the conversation to Mrs Western when she saw her that day as at that stage she believed there was a mediation to take place on the following Tuesday and she wanted to keep the conversation confidential.
[43] Transcript p 99.
Ms Harvey was a good witness and I am satisfied that she told the truth about this conversation. However, the following day, ie 19 October 2009, the Nursing Home notes record that:[44]
Son Phillip now has sole EPA and medical power of attorney. Met with Maisie and she is happy with the decision. At her request I requested ARAS to no longer be involved in her case. Apparently there was a meeting organised for 20 October 2009 at 10.00 am by daughter Jill. Maisie does not wish this to occur. Son, Phillip will cancel this meeting. Maisie is going to her son’s home overnight and is looking forward to seeing her grandchildren.
[44] Exhibit P1, p 190.
There is no evidence as to what prompted this sudden change of heart by Mrs Male other than the comment in the note that Mr Myers would cancel the meeting. The end result was that a mediation meeting never took place.
On 26 October 2009, Mr Nicolas, a solicitor acting for Mrs Western, wrote a letter to Mr Myers in which concern was expressed about the change of the power of attorney. The letter also raised the issue of the proposed loan to Mr Myers.[45]
[45] Ibid, p 125.
Loan to Mr Myers
As earlier mentioned, Mrs Western said that she first heard about the loan after it had been decided that the house would go on the market and her mother had said that she wanted to loan Phillip $200,000 to pay off his mortgage at the workshop. Mrs Western said she expressed concern to her mother about that because she was on the pension and needed the interest on the money to keep her for the rest of her life. She said she asked what would happen if Phillip did not pay interest on the money but her mother could not answer that.[46] Mrs Western said she subsequently spoke to her brother about it and he told her that he was having some papers drawn up, but she never saw them.
[46] Transcript p 140.
Mrs Male in evidence agreed that she was going to loan Phillip a sum of about $200,000 with interest payable every month but she could not remember how much that would be. She said that “he was going to do it by law, it would be very secured”.[47]
[47] Ibid, p 286.
Mr Myers in evidence could not put a timeframe on when the discussions regarding the loan occurred but he was adamant that it was Mrs Male who first raised the topic with him. In evidence he said:[48]
[48] Ibid, pp 305-308.
Q: Before we come back to what happened after you returned, before the auction did you and your mother have a conversation on the topic of her making a loan to you.
A: I couldn’t put a time frame on it but at some stage it was discussed.
Q: And what was it that was discussed.
A: That if the loan were to go ahead my accountant would go ahead and find out what penalties it would incur on my mother, and that I would compensate my mother to the exact amount of money of whatever penalties were for her lending me the money.
Q: Who raised the topic of a loan from your mother to you.
A: Mum.
Q: And can you remember the context in which that arose.
A: Not in finer terms I can’t but – it’s a long time ago but it’s, I guess, mother and son speaking. We had just managed to come to that. I can’t honestly say how it all got started, but it got started and it was to be that Jillian and I were to have equal rights to do the same thing, which was mum’s idea of fairness.
Q: At that early stage of discussions was an amount suggested.
A: Less than $200,000, because that was less than a third of the money that was available, and I didn’t need a full $200,000 to repay – it was to remove my mortgage, basically.
Q: Did you tell your mother how much your mortgage was.
A: In approximate terms. I couldn’t even tell you today what it is exactly.
Q: At that stage I think it was known how much would be necessary to pay the administration bond for your mother to enter [Nursing Home] on a long-term basis, isn’t that right.
A: Yes, because she – well, once she was in [Nursing Home], I was then aware of how much money was paid. Prior to that I had no idea of what was to be paid because I wasn’t made party to those arrangements as far as the dollars and cents, and nuts and bolts, of it went.
Q: At the time of this discussion about a possible loan did you know that the administration bond for [Nursing Home] was to be $350,000.
A: No, and I was horrified when I found out too.
Q: I think that you had a telephone discussion with Jill in the course of which there was talk about this loan that your mother was proposing, do you remember that.
A: I would have to say it’s quite probable. I don’t exactly remember but it is extremely likely.
Q: If you look at para.17 of your affidavit, that part of para.17 which is at the top of p.5, does that refresh your memory.
A: Yes, I remember the incident of driving in the car when she got on the phone and the loud speaker and mum was there. Yes, I remember that, because I think we were going across the Sturt Road/Morphett Road intersection, yes.
Q: What was it that you and Jill discussed on that occasion. What was the conversation as best you can recall.
A: I seem to remember it being a little bit heated. I don’t remember the full contents but I just seem to remember there was bit of a problem with it, I seem to remember thinking, because mum was there.
Q: You suggested, I think, that you were going to make arrangements for documentation of this loan.
A: Yes.
Q: And inquiries as to what effect, if any, it might have on your mother’s circumstances.
A: Yes, I asked Peter Gibson, who was the founding partner of Gibson & Partners, to work out what would be a fair thing; in other words, what would mum be disadvantaged by if she loaned me the money both with loss of pension or loss of whatever.
Q: And before you did that did you have a discussion with your mother about an interest rate.
A: At some stage we did, probably before I did anything, like, inquire about it, because –
Q: Not ‘because’. Do you remember what interest rate was proposed.
A: I can’t remember the amount but it was a weekly sum that compensated mum pretty well exactly for what she would lose by lending me the money so that she was not disadvantaged at all.

As it happened, the loan agreement was never sighted nor signed and on 10 December 2009 an order for injunction was made in these proceedings by Judge Lunn restraining Mrs Male from entering into any contract in respect of a loan of the net proceeds of the sale of the property located at Somerton Park, South Australia, or otherwise gifting the net proceeds of the sale of the property located at that address. On 14 December 2009 that order was continued until further order.
Mrs Males’ social leave with Mr Myers
Mr Myers said in evidence that he assumed he had seen the letter from Mr Nicolas dated 26 October 2009, but he maintained there was every chance he had not seen it for seven days[49] and was not prepared to concede the coincidence of the date of the letter with his actions the following day.
[49] Ibid, p 337.
On 27 October 2009, at 1.25 pm, Mr Myers rang the Nursing Home and requested that he be able to pick up his mother to take her to his home until the following Monday.[50] However, Mrs Male did not return to the Nursing Home on the Monday, which would have been 2 November 2009. On 29 October 2009 the Nursing Home notes record that:[51]
Phillip stated he’ll be in tomorrow, also wanted to know how many days of S/L Maisie could have as he has no intentions of bringing her back so sister can take her out, stated he was waiting until money comes through as we’ll not see his sister then.
[50] Exhibit P1, p 191.
[51] Ibid, pp 192-193.
On 30 October 2009 Mr Myers applied for social leave for the period from 27 October to 6 November 2009.[52] However, on 28 October 2009, Dr McKenzie had written to Dr Hecker with a request that she assess Mrs Male to see if she was fit to make legal decisions and asking her opinion that if she was not, whether she would recommend guardianship be placed under a third and uninvolved party such as the Guardianship Board.[53] Following that, appointments were made with Dr Hecker on 3 November 2009 and 6 November 2009 but neither of those appointments were kept.
[52] Ibid, p 127.
[53] Exhibit P3.
On 5 November 2009, the Nursing Home contacted Mr Myers about the ongoing social leave. Mr Myers said that Mrs Male was enjoying herself, but he agreed to bring her in the following day to check to make sure that she was happy.[54]
[54] Exhibit P1, p 194.
Mr Myers came into the Nursing Home on 6 November 2009 at which time he made an application for further social leave to continue up until 14 December 2009. Coincidentally, 14 December 2009 was the date for settlement of Mrs Male’s house.
On 11 November 2009, while she was staying with Mr Myers, Mrs Male wrote to Susan Davies complaining about accusations made by her daughter, which included a complaint about her daughter trying to take her to be assessed. She said inter alia:[55]
I am fed up with Jill’s harassment, it is most upsetting and I would like you to write her a letter requesting that she ceases to interfere with my financial and medical affairs. I am tired of having my mental health questioned. It is demeaning and insulting. Should she continue to do so please tell her that she does so at the risk … of me altering my Will.
[55] Ibid, p 133.
Guardianship Board proceedings
Mrs Western said that after the cancellation of the family meeting and removal of her mother from the Nursing Home by Mr Myers, she made the application to the Guardianship Board. She said she had heard about proposals by Mr Myers to turn the garage of his house into a flat for her mother and she was worried about the kind of care and medical administration her mother would receive.
On 12 November 2009, Mrs Western filed the application with the Guardianship Board. Mrs Male said that she received notice of that application on or about Tuesday, 17 November 2009 with respect to a hearing to take place on the following Friday, ie 20 November 2009.[56] It appears that on the same day, Mr Myers took his mother to see his general practitioner, Dr Crawford. Dr Crawford then referred Mrs Male to Dr Cotton, a psychiatrist who had been treating Mr Myers for a number of years. The reports of Dr Crawford[57] and Dr Cotton[58] were then produced at the Guardianship Board hearing which took place on 20 November 2009. The reports are discussed hereafter.
[56] Exhibit D16 at [15].
[57] Exhibit P9 - JLW 9.
[58] Exhibit D12.
The Guardianship Board considered Mrs Western’s application on 20 November 2009. Mrs Western said that in addition to herself, Mr Myers and Mrs Male, her niece Danielle and Danielle’s husband James Hooper attended, as well as her mother’s best friend, Molly Wharldall. Dr Cotton was present and he confirmed the opinion contained in his report dated 18 November 2009 that Mrs Male was able to manage her financial affairs.
Mrs Western said the hearing was reasonably informal. Dr McKenzie and Dr Young had also provided reports to the Board but Mrs Western said the President, Mr Moore, indicated that Dr Cotton’s experience as a psychiatrist had more bearing than the two treating GPs. Mrs Western said that she then agreed to withdraw her application provided that her mother was returned to the Nursing Home and had 24-hour medical care. Mrs Western’s belief was that the return to the Nursing Home was going to occur quite quickly.
Mrs Western said that after the hearing her mother hugged her and asked when was she coming to stay with her and Mrs Western told her any time she wanted. She said her mother also chatted with her friend, Molly, and they all said that they loved her and wanted to see her and wanted to know that she was being looked after.
Mrs Western said that when she subsequently contacted the Nursing Home she found out that her mother was still on extended social leave and she was concerned that she needed to have her health needs met. As a result, she contacted the police. It was suggested to Mrs Western in cross-examination that she had told the police that her mother was being held against her will, but she denied that was so. She said she asked them for a social check on her mother’s health to ensure she was safe.[59] Mrs Western denied that she had been upset and angry when the Guardianship Board declined to make the order that she had sought and that she had changed her mind and resiled from the agreement which had been reached at that time. She said that she was distressed as she had not been able to have contact with her mother and that if she had been able to do so everything would have gone back to normal.
[59] Transcript p 242.
Mr Myers confirmed that he had taken his mother to the Guardianship Board hearing and that at the end there was an agreement that Mrs Male would return to the Nursing Home in the near future. However Mrs Male did not return until 5 December 2009 which was about two weeks later. Mr Myers could not give any specific reason for the delay other than his mother enjoyed staying with him.
The “No Visitor” list
Following Mrs Male’s return to the Nursing Home a number of people were excluded from visiting her. Mr Myers said on a number of occasions that he had no part in this and the decisions were made by his mother alone. However, on 6 December 2009 ie the day after she returned from the extended social leave with Mr Myers, the Nursing Home notes record a phone call from Mr Myers as follows:[60]
… staff are not to let Maisie’s daughter see her under any circumstances and staff are to break the rules to stop her and he will smooth it over with Don (Cox) and Andrew (CNC). Staff (EN Yard) told son we can only ask Maise if she wants to see her daughter or not, also told son we can’t physically restrain her and he said well call me if she comes in and I’ll call the police. Son believes there is a “leak” at [Nursing Home] and a staff member is giving daughter information, he states he will find out who it is as he used to be a private investigator and will take out a court order against them. EN Yard and RN Abbott asked Maise if her daughter comes in would she like to see her. Maise stated NO and that it would take a long time to forgive her. Don (Cox) has been notified. (sic)
[60] Exhibit P1, p 199.
On 7 December 2009, Mr Myers took his mother on overnight social leave.[61] When she returned from that visit on 8 December 2009, the notes record that she was agitated about family matters and that she endorsed:[62]
…she did not want ‘that side’ of the family visiting and supported the telephone blocking incoming call and her mail to be directed to son Phillip.
[61] Ibid, p 200.
[62] Ibid, pp 200-201.
On 8 December 2009 there is a note in the Nursing Home records about a meeting at which Mrs Male and Mr Myers were both present. At the meeting Mrs Male:[63]
… presented a list of some 15 people she did not wish to have any further contact with – including daughter Jill. Maisie is very clear that the past few weeks have been difficult for her exacerbated by those on the list. It was agreed that for the staff’s benefit a sign would be posted on Maisie’s door no visitors. Staff will be advised in advance if she is expecting visitors. Son Phillip is welcome. This request applies to telephone and written contact. Written contact to be forwarded to son Phillip. Maisie will be soon changing name from Male to Myers. In addition there will be regular visits to a psychiatrist for her anxiety related to the past few weeks. Memo has been posted advising staff of Maisie’s instructions.
[63] Ibid, p 203.
On 9 December 2009 the Nursing Home advised Mrs Western by phone of what had occurred with respect to visitors. Mrs Western then told them that she had instituted the current proceedings. The Injunction Order which was made by Judge Lunn on 10 December 2009 was served on Mrs Male by Donna Cox on 11 December 2009. The Nursing Home notes[64] record that Donna Cox explained the effect of the order to Mrs Male. Mrs Male told Donna Cox that she was going to an appointment with the solicitor that day and “he will explain [it] or Phillip will”.
[64] Ibid, p 206.
Enduring Power of Attorney, Enduring Power of Guardianship and Will dated 11 December 2009
Mrs Male then went to see a solicitor and on the same day as the order with injunction was served she executed an enduring power of attorney and enduring power of guardianship[65] and a new Will[66] all in favour of Mr Myers. The Will appointed Lindsay Simpson and a Peter Noel Keogh as the trustees. Mr Myers was made the sole beneficiary of her estate, but to pass to his children, Toby and Alexandra, in the event that he pre-deceased her.
[65] Ibid, p 5.
[66] Ibid, p 17.
Sally’s visit
On 14 December 2009, Mrs Male’s granddaughter Sally from Tasmania visited the Nursing Home and asked if she could see Mrs Male. Mrs Male agreed, as long as the nurse stayed. The notes record[67] that Sally tried to explain Jill’s position. Mrs Male was subsequently asked if she wanted staff to leave and if she wanted time alone with Sally. Maisie thought that would be okay and to come back in about 10 minutes. Staff subsequently checked on Mrs Male and she was okay. It appeared that Sally left at about 6.10 pm.
[67] Ibid, p 211.
This visit appears to have been quite uncontroversial and would appear to be inconsistent with an independent decision by Mrs Male to exclude most of her family from seeing her.
On 16 December 2009, Mrs Male underwent a further depression assessment at the Nursing Home when it was noted that she was suffering from anxiety relating to personal and family matters.[68]
[68] Ibid, p 67.
Dr McKenzie conflict of interest
On 18 December 2009 Dr McKenzie saw Mrs Male at the Nursing Home and checked on her medication. Dr McKenzie noted that after discussion, Mrs Male was sure that she had control of her panic attacks without medication and it was agreed to stop Alprazalam, but it was left as an “if needed medication”. There did not appear to be anything remarkable about this appointment but on 20 December 2009 the notes[69] record that Mr Myers directed staff not to contact Dr McKenzie and to call a locum if Mrs Male needed medical assistance. He said he had been told by a lawyer that there was a conflict of interest and to find a new doctor straight away.
[69] Ibid, pp 213-214.
Dr McKenzie had treated Mrs Male between 2004 and 2006 and again following her admission to the Nursing Home. Dr McKenzie was unaware of why her services were terminated nor any reason why she might have a conflict of interest. Mr Myers in evidence claimed his mother disliked Dr McKenzie intensely[70] but there was no evidence from Mrs Male to support that. Mr Myers could not recall exactly what he had said to the Nursing Home about the conflict of interest nor the advice he had received about that matter. However, there is a later note in the Nursing Home records[71] on 13 May 2010 of an occasion on which Dr McKenzie agreed to see Mrs Male for a sore throat after the doctor who replaced her was not available. However, Mrs Male apparently refused to see Dr McKenzie:
... as she feels Dr was involved with Jill (daughter) in taking Maisie to court.
[70] Transcript p 345.
[71] Exhibit P1, 83/95.
Exclusion of visitors
On 20 December 2009 Mrs Male apparently went out for the day with Mr Myers. The notes record that she returned to the unit at about 8.00 pm.[72]
… son, Phil, not happy upon entering Maisie’s room, found a parcel (x-mas present) on Maisie’s bed. Phil came out and told staff – this is a Supreme Court matter, who put this present on mum’s bed? Staff unaware as to who or when present was placed on bed. Phil not happy, has stated he wants all staff to be aware that no mail/correspondence to be placed in room, but front office. Maisie stated – maybe they want to poison me.
[72] Ibid, p 215.
This appears to be the first reference in the notes to a belief held by Mrs Male that someone was trying to harm her.
On 4 January 2010 the Nursing Home notes record that Mrs Male’s two granddaughters and two great grandchildren came to visit her but were advised that she was not having visitors. Mrs Male was asked if she would like to see them, but she stated:[73]
I would love to but I can’t under the circumstances.
[73] Ibid, p 221.
This was explained to the family and they left. However, Mr Myers apparently then rang in regard to this visit and was not happy and asked staff to ring tomorrow about the situation, and to let no-one in to see Mrs Male.
On 5 January 2010 the notes record that:[74]
Spent the last hour with Maisie in light of family activity over New Year. Maisie was quite clear she does not want to see any family after what they have done. She is very upset about the court hearing. She did not appear stressed or anxious. “I am the matriarch of this family and I have the right to do what I want with my money and I want to help Phillip”.
[74] Ibid, pp 221-222.
On 7 January 2010, following legal advice, Donna Cox spoke to Mrs Male about the issue of visitors. She asked Mrs Male to put the request in writing. Mrs Male subsequently did that in a letter,[75] saying that she did not wish to have anyone visit except her sisters, Joy Reid and Shirley Buddle.
[75] Ibid, p 135.
Mrs Male’s letter to Mrs Western
Throughout these proceedings Mr Myers endeavoured to emphasise that all Mrs Male’s decisions, including the exclusion of visitors, were made by his mother independently, without any influence from him. If that was so, it makes what Mrs Male did next quite surprising. On 11 February 2010 Mrs Male gave a note[76] to her sister, Shirley Buddle, which said:
If you feel I should send this letter to my daughter, please post it for me and not a word to Phillip or anyone as it might have repercussions. I will phone you tomorrow. Maisie – PTO.
[76] Ibid, p 145.
The letter reads:[77]
Dear Jill, Would like to meet you again to see if we can sort out our relationship. It is up to you, but I am missing you. Mother.
[77] Ibid, p 147.
When Mrs Western received the letter, she replied to her mother by fax sent to Donna Cox. [78] She said she had missed her mother a lot and she proposed a meeting, possibly at Shirley Buddle’s house, to take place a few days later.
[78] Ibid, p 149.
On 18 February 2010, Donna Cox spoke to Mrs Male in company with Andrew Hook, the Clinical Nurse Manager about the letter which she had sent to her daughter:[79]
We asked Maisie how things were going and she openly talked about the impending court case and how she missed Jill without any prompting from either Andrew or I.
I showed Maisie the notes she had allegedly written and sent to Jill. Maisie acknowledged these were from her and she would love to sort things out however with the impending court case she felt that this was not possible. I showed her the letter Jill had written to her, this letter saddened her and was not sure what to do. Maisie decided she would talk to son Phillip tonight when he rang about this. Andrew and I enquired as to why she would like to discuss with Phillip and Maisie advised she wanted to be truthful. I checked to see if she was frightened of Phillip and she was clear she is not frightened but loves him very much and does not like to keep secrets or be untruthful.
[79] Ibid, p 153.
I infer from what happened next that Mrs Male then had a discussion with Mr Myers, as Mrs Male changed her mind about seeing her daughter and the next day, ie 19 February 2010, Mrs Male wrote a note[80] to Donna Cox and Mr Hook which said:
Thinking overnight about the conversation we had yesterday afternoon. I will not have any contact with anyone in the family other than Shirley and Phillip before the Supreme Court proceedings. I hope and pray all will be definitely finalised and completely finished some time in March. Tell Jill I wish her the best regarding her operation on Wednesday next and she quickly regains her health again. Maybe there will be peace for us both in the future.
[80] Ibid, p 155.
When Mrs Male handed the note to them, she said she did not want contact with Jill until after the court case, but she asked Donna Cox that when she spoke to Jill to tell her she still loved her.
On 5 April 2010 the notes record:[81]
Visited by Lindsay (Phil’s brother) this shift. Staff did not know who he was and he would not identify himself to staff so was told that he could not visit. Maisie was out at this time also. When told that Maisie was out Lindsay got quite irate and then told staff who he was and asked who Maisie was out with. Stated that Maisie has been out since I came on shift and there is no record of who she went out with. Lindsay then proceeded to ring Phil. Phil okayed the fact that Maisie was out with Shirley (sister). Lindsay left the unit.
[81] Ibid, 93/95.
Valium allegations
On 2 July 2010 Dr Cotton provided a further report in this matter. He had continued to see Mrs Male after the Guardianship Board proceedings, namely on 13 January 2010, 4 February 2010, 29 March 2010, 27 April 2010 and 30 June 2010. In this particular report he referred to a statement by Mrs Male, apparently made at the interview on 30 June 2010, that:
I should never have been put in [Nursing Home], my daughter put me in there against my will when she had me on Valium, which made me confused. When they stopped the Valium, it took a week for me to clear my mind and after that I was quite a different person and got along well with the staff.
The allegations by Mrs Male that she had been confused at the time of her admission to the Nursing Home as a result of the inappropriate administration of Valium by Mrs Western assumed some significance in the trial and was repeated by Mrs Male in evidence.[82] This included reference to an occasion when she had secreted a pill in her pocket and had later produced it at the Nursing Home for checking. There is however no record of any such incident in the Nursing Home notes.
[82] Transcript pp 291-292.

Ms Harvey gave evidence of an occasion, prior to Mrs Male’s admission to the Nursing Home, when she received a phone call from Mrs Male who told her she had taken three Valium tablets. Ms Harvey immediately went to the house to check on Mrs Male’s condition. She checked the number of tablets taken and Mrs Male said the doctor had told her she could take three.
Ms Harvey went on to say that she thought the doctor had probably said three a day rather than three at once. However Ms Harvey checked the tablets and as they were only 2mg tablets she did not think there was a problem with an overdose.
Mr Myers in evidence hinted at a possible drug problem when Mrs Male returned from Victor Harbor and before she went to the Nursing Home. However, apart from the incident described by Ms Harvey, the first mention by Mrs Male of a problem with Valium seems to have been in the report of Dr Cotton dated 2 July 2010. As can be seen from the history set out hereafter, it was something which was mentioned by Mrs Male on a great number of occasions after this interview with Dr Cotton.
As I have earlier mentioned, Mrs Male continued to see Dr Cotton after the Guardianship Board proceedings. She also went on social leave with Mr Myers on a regular basis. During this period Mrs Male did not have any contact with Mrs Western. Eventually, following further court proceedings, on 5 August 2010 Mrs Male was examined by Dr Hecker who provided a report to the court on the same day.[83] That report will be discussed later in these reasons but it is pertinent to note that at that interview Mrs Male repeated her complaint that Mrs Western had been poisoning her with Valium. On 9 August 2010 there is a note in the Nursing Home records[84] about Mrs Male refusing her medication as she said that:
…it is making her muddled and it’s all Jill’s fault, and I just don’t want to take it any more.
[83] Exhibit P2.
[84] Exhibit P1, 68/95.
Later that night there is another note:[85]
Went in to give Maisie her nocte medication @ 2030 hrs. Observed Maisie to be ranting, stuttery and having delusional thoughts. Stated “her daughter was trying to kill her with Valium and she will never take it again”. Maisie went on to say “that she will never forget it, stated she use to wait until daughter went to sleep then she would sneak off and stick her fingers down her throat and make herself vomit so she would bring up all the tablets”. “Then she would ring Phil for help”. Maisie stated this to happen every night. Maisie refused her Kalma, stated “she wanted to remain aware, just in case”…. Observed Maisie to be very agitated, her word finding ability was very poor. Many times throughout her conversation she would lose her train of thought and with a cold stare started to rant about Jill trying to kill her…. Maisie also stated during conversation “you ask Phil he will tell you that Jill tried to kill me”. Stated this randomly many times while she was talking to me.
[85] Ibid.
On 10 August 2010 the Nursing Home notes record:[86]
Observed Maisie to be on the phone (Phil’s voice heard) arguing. Maisie very anxious and SOB at this time. Heard Phil speaking abruptly, unknown of what was being said. Maisie stated x4 that she has to go as she can’t deal with this anymore, Phil continued speaking abruptly, to this she hung up on a very loud speaking Phil. Maisie went on to comment “that she has just had enough of this court business and I can’t take it anymore”.
[86] Ibid, 67/95.
Mrs Male saw Dr Cotton again on 12 August 2010 and 7 September 2010. In his report of 7 September 2010, Dr Cotton recorded that Mrs Male again repeated the Valium allegations, and she told Dr Cotton she had also mentioned it to Dr Hecker. On 9 September 2010 the Nursing Home notes record:[87]
CONFUSION/BEHAVIOUR - Observed Maisie to be very tired and anxious +++ this shift. Remained in room for tea. Went in with nocte medication, when Maisie kept stating repeatedly “my daughter is trying to kill me”. Asked Maisie to stop worrying about her family matters for tonight so she can get a good sleep. Maisie has this dillusion [sic] at present that if she goes to sleep her daughter is going to come and kill her. She mentioned this a few times tonight.
[87] Ibid, 59/95.
On 13 September 2010 Mrs Male was taken by Mr Myers to see Dr Symon, a psychiatrist, and he later provided two reports[88] to the court. Mrs Male repeated her concern to Dr Symon about the way in which her daughter had administered Valium to her. On this occasion she referred to being given Milo at night and she said her daughter would stand there and watch her take it without fail. She also told Dr Symon about the occasion that she had hidden the tablet in her pocket and had it checked upon her return to the Nursing Home.
[88] Exhibit D13.
On 15 November 2010 the notes record:[89]
RETURN - Maisie RTU from S/L @ 2150hrs. 2100 hrs. medication given at this time. All other medications given by son Phil while on leave. Maisie settled in bed observed to be quite anxious. Continued to tell me about the time her daughter was trying to kill her with valium a story Maisie has told me repeatedly, noted usually on return from S/L. (Emphasis added)
[89] Exhibit P1, 46/95.
Will dated 9 December 2010
There is no evidence as to the circumstances surrounding the execution of this Will, which appears to be in exactly the same terms as that executed in 2009 with the exception that Mrs Male’s address has been changed from what appears to have been Mr Myers’ business address, to the Nursing Home address. There is however a note in the Nursing Home records[90] that on 9 December 2010:
Lawyers present this afternoon to have discussions with Maisie – 1430hrs. Son present.
[90] Ibid, 38/95.
Will dated 20 January 2011
On 18 January 2011 Dr Symon again saw Mrs Male. This appointment appears to have been made at the request of Caldicott & Co to assess her testamentary capacity. At that time she had not had any contact with her daughter for more than a year, but she repeated her belief that her daughter had been administering Valium to her. She also referred to considerable sums of money she had given her daughter over the years to buy and sell houses and she told Dr Symon she felt that her daughter had “had enough”.[91]
[91] Exhibit D13.
At the end of the interview, Dr Symon’s opinion was that Mrs Male had testamentary capacity. Although Mrs Male had executed a Will only a month earlier, she executed another one on 20 January 2011. This included some specific requests which were new, ie to permit her sisters, Joyce Reid and Shirley Buddle to each select an item of china and to give her jewellery to her granddaughter Alexandra, but otherwise, it remained the same as those executed in 2009 and 2010, ie with Mr Myers as the sole beneficiary.
Visit of Georgia Gun
The next event of significance appears to have occurred on 6 March 2011. On this occasion, Georgia Gun, a daughter of Denise and granddaughter of Mrs Male, attended at the Nursing Home to visit Mrs Male. Georgia in her evidence said that she had always had a good relationship with her grandmother. They had been very close and there was a period when she was about nine or 10 when she lived with Mrs Male for a period of about one year.
She said that she and her partner had a son, Charlie, who was born late last year and at the time of the visit was aged about four and a half months. Georgia said that on the day in question she went to her grandmother’s room at the Nursing Home and introduced her partner to Mrs Male and showed her Charlie. Mrs Male held Charlie for a short time but then two staff members from the Nursing Home entered the room. They asked Mrs Male if she was comfortable having them there and Mrs Male responded that she was.
Georgia described the visit as being rather emotional for both of them. However after about 10 minutes, a staff member came and asked her to leave as they had contacted Mr Myers, who advised that he was on his way to the home and if they did not leave, the police would be called.
Georgia said that her grandmother was teary, but they left. She said that she also was in tears. They waited outside, at which point Mr Myers arrived. Georgia gestured that she would like to speak to him but he gave her a rude hand gesture and reversed out of the car park at great speed.
Georgia said that prior to this visit she had tried on several occasions to speak to her grandmother but had not been put through to her room. She had attempted to contact her after her son’s birth and at Christmas time she had sent a card with a letter and some recent photographs.
Georgia’s visit is recorded in the Nursing Home notes as follows:[92]
Maisie had an unauthorized visit from her grand-daughter, and family today. At the time Maise was very happy to see her. Once staff became aware of the unauthorized visit, RN asked grand-daughter, Georgie to leave premises. She was reluctant to leave, and Maise wanted her to stay. Son Phil contacted, and he insisted they leave. Grand-daughter, partner, and baby had to be escorted off the premises. Once out in car park, Phil arrived, and family had an altercation, but Maise was unaware of this.
[92] Exhibit P1, 7/95.
It appears that Donna Cox was then contacted at home about the visit and the note records:[93]
…Staff had then rung Phil and advised him of the visit. Phil became angry and advised if she refused to leave to call the police. RN Maksimovic advised Maisie seemed happy to have grandaughter visit. I arrived at [Nursing Home] at about 1215 hrs to find Phil waiting to speak to his mum and grandaughter had left. Maisie was at the dining table eating her lunch. i spent time talking to Phil with RN maksimovic in attendance. I explained to Phil that if Maisie wants to see visitors she can and that we must take things on a day to day basis as we have no documentation as to her mental capacity and she has refused to let us test her for her current capacity. Phil said she is very confused at the moment due to her UTI and he is envoking [sic] his powers as EPG. We talked about this is a difficult situation for staff and we cannot stand guard at Maisies’ door to prevent visitors and if he did not want this to occur again he may need to consider further arrangements.
I advised I wanted to speak to Maisie prior to him to which he refused stating I am in charge and will speak to mother first. I gave Phil 10 mins with his mother then interrupted her with RN maksimovic. I requested Phil leave the room. When I spoke to Maisie she did not recall Georgie’s visit. When I enquired had Phil visited her today she thought about that and stated ‘I refuse to answer that question’ I enquired how she was getting along with Phil and she reported ‘he is a wonderful son’ Maisie appeared frail and wan when I spoke to her however with time she was able to remember my name.
[93] Ibid.
The next day, ie on 7 March 2011 Donna Cox again spoke to Mrs Male but at that stage she did not appear to remember her granddaughter’s visit but she mentioned that she was worried about the court case.[94]
[94] Ibid, 6/95.
On 9 March 2011 Donna Cox had a conversation with Mr Myers who advised that Mrs Male’s solicitors had instructed that if there were any unauthorised visitors in the future, as per the weekend, they were to call the police. Donna Cox asked that they get that in writing and she recorded:[95]
I re-inforced to Phil that Maisie enjoyed Georgia’s visit and she can choose to change her mind and while she has capacity we would take instructions from Maisie.
[95] Ibid, 5/95.
The evidence relating to Georgia’s visit is of some significance when considering the submissions of the plaintiff with respect to the isolation of Mrs Male. All the evidence supports a finding that this was a happy occasion, which was welcomed by Mrs Male and there is no evidence to justify what appears to have been Mr Myers’ extreme reaction to it.
Georgia said in evidence that she was supporting her aunt’s application because:[96]
... I want to be in my nana’s life again. I miss her very much not being able to see her and I feel it’s very unfair.
[96] Transcript p 75.
However, it was put to her in cross-examination that her support of Mrs Western was in part motivated by the fact that she had been cut out of her grandmother’s Will and that she would like to see the position reversed. Georgia was adamant that was not the case and I accept her evidence about that. When giving evidence about this visit, Georgia became rather emotional. She impressed as sincere and I accept her as a witness of truth. I also observed that whilst Georgia was giving evidence, Mrs Male exhibited a degree of animation in her expression, consistent with the comment in the Nursing Home notes that Mrs Male had been happy to see her granddaughter at the home.
However, the Nursing Home notes[97] record that on 10 March 2011 Mrs Male was confused and engaged in erratic behaviour which included an approach to staff to:
…“stop that man because he knows about my court case” – the man was [Nursing Home] maintenance staff.
[97] Exhibit P1, 4/95.
The notes also record episodes of potential self harm at about this time and during the evening of 10 March 2011 Mrs Male appears to have had a fall in her room. On 11 March 2011 she was admitted to the Flinders Medical Centre where she remained until 25 March 2011. There is a note[98] in the Flinders Medical Centre records on 22 March 2011 that:
… Maisie is doing well and has improved significantly. Maisie’s mini mental today is 23/30 compared to 7/30 when she was first admitted.
[98] Ibid, 7/15.
A note made prior to her discharge records that she was seen by the neuropsychologist at Flinders on 24 March 2011. At that time she was much improved and:[99]
… very clear about her expectations and there are no capacity issues at the moment. With delerium we will see some good days and bad days and this is not unusual manifestation of delerium … Maisie is keen to come back to [Nursing Home].
[99] Ibid.
Evidence of Mrs Male
Against the background of events as set out in the chronological history it is necessary to consider some of the evidence of the witnesses. I start with Mrs Male.
I feel obliged to say at the outset that in view of Mrs Male’s age and obvious affection for both her children, it is regrettable that the issues between them have developed to a stage which required the intervention of the court and the need for Mrs Male to give evidence at the trial. Despite the difficulty that must have occasioned for her, I consider that she did the best she could to assist in this matter but it was clear that at times she did not quite understand questions that were being put to her and on occasions she became quite confused.
Power of attorney
I have earlier referred to some of Mrs Male’s evidence with respect to the execution of the first power of attorney as set out in her affidavit filed in these proceedings.
In evidence at the trial, Mrs Male said that she had given Phillip the power of attorney and taken Jill off because:[100]
A.     Well, I just wasn’t very happy with what Jill was doing so I just decided that Phillip was very reliable and he, he won’t spend any more money than he needs to. He says, you know, he looks at my – first and he says ‘Mum, you can’t do that’ and I think about it and I think ‘Yes, he is right, I can’t do that’, so I don’t.
Q.     Are you saying that sometimes when you want to spend money Phillip has said that you shouldn’t.
A.     Yes.
[100] Transcript p 258.
In cross-examination counsel followed up on this statement that Mrs Male had changed her power of attorney because she was not happy with Jill. Mrs Male was then asked what Jill had done and Mrs Male said:[101]
[101] Ibid, pp 282-283.
A.     Well, she wouldn’t agree with what I was doing.
Q.     What were you doing.
A.     Changing it over to Phillip and he’s been a tower of strength to me ever since. He did everything he could possibly do to help me: taking me to all appointments and generally looking after me as a son to his mother.
Q.     At that time when you went to see Susan Davies back in September of 2009 did you tell Jill that you were unhappy with the way she was doing things.
A.     No, I don’t think so.
Q.     Why not.
A.     Perhaps I was angry with her, was the reason probably why.
Q.     Why didn’t you talk to her and say ‘I’m angry with the way you’re managing my life. I am changing my power of attorney to just Phillip’.
A.     Because that was exactly how I felt.
Q.     So why didn’t you just tell her.
A.     Perhaps I thought there would be another upheaval and she’d gone back to Victoria then, I think; I’m not sure.
Q.     Jill says she only found out about that after you did it. Jill says she only found out about the change in attorney after you did it.
A.     Yes, that’s right.
Q.     And that she says on the day of the sale of the house you and her talked about it, do you remember that.
A.     Yes.
Q.     And what did you tell her on the day of the sale of the house.
A.     To who?
Q.     Jill, about the power of attorney.
A.     I can’t remember.
The Wills
Mrs Male said she had changed her Will in December 2009 because she was very angry.[102] She said that she had made Phillip the sole first beneficiary because he was quite capable of using her money, telling her how to use it and that if she wanted something that she could do without, he would say, “No, you can’t buy that”.[103] She said she took Jillian out of the Will:[104]
Because of what had happened in the past, and I wasn’t happy because when we went shopping she’d always say ‘Mum, that would look lovely on you’, and in the finish I had to put my hand up and I said ‘No, I’ve got enough clothes. I don’t need another thing’.
[102] Ibid, p 259.
[103] Ibid, p 261.
[104] Ibid.
As far as she was aware, the Guardianship Board proceedings had nothing to do with changing her Will. She said that when she made the Will in January 2011, Mr Douglas, a solicitor, was present with another solicitor from Caldicotts & Co but Phillip was not present.
Mrs Male was asked about the exclusion of Denise’s children from the Will and she said:[105]
I haven’t seen them because they all took me to court and they were all against me, the first time I went I only had Phillip with me. I was very unhappy about that, that they all sided, even my best girlfriend Molly Warrell [sic]. She sided with the others because her husband was in charge of the case and I’ve never seen her since. Just very sad.
[105] Ibid, pp 287-288.
Management of accounts
Mrs Male was aware of what the court case was about, ie “money mainly”.[106] She was asked whether she knew why her daughter wanted the Public Trustee to look after her affairs and she responded that she, her daughter, wanted to take control of her affairs and she did not want that. She agreed that she was cross with Jill but said:[107]
Well, I still love her, she’s my daughter after all. But … after the second lot of Public Trustee that I didn’t feel happy at all, that’s why I had Lindsay and Peter Keogh go, to use, to tell me what I could and what I couldn’t do.
[106] Ibid, p 265.
[107] Ibid, p 267.
She also agreed that Peter and Lindsay helped her with her money but she said:[108]
… I haven’t had to ask them for money because I don’t need much money at [Nursing Home]. It’s only to have my hair done and I keep money in my safe to go to take out when I need to have my hair done.
[108] Ibid, p 266.
Mrs Male was adamant that Phillip was not controlling her money. She said that she just says to him:[109]
…‘I’m the head of the Myers family, you do as I wish’ and he said and that’s as it should be.
[109] Ibid, p 267.
She confirmed that she was the one that looked after her money and was quite capable of doing it, but in the future:[110]
When I’m not able to look after my money well then I will have to turn it over to either Veterans Affairs or … the Guardianship Board.
[110] Ibid, p 256.

In the circumstances, I do not think it is necessary for me to resolve the degree of Mrs Male’s incapacity. I am satisfied that Mrs Male suffers from a degree of cognitive dysfunction or impairment which, as Dr Symon said in his report:[167]
…has either vascular or mixed Alzheimer vascular pathology and that ultimately she may well get to the point of suffering from dementia.
[167] Exhibit D13.
I am satisfied that there are fluctuations in the degree of Mrs Male’s impairment and that will continue in the future. That will affect Mrs Male’s ability to make decisions and manage her affairs. Although Dr Symon considered Mrs Male had testamentary capacity, he reached his conclusion based upon an understanding that Mrs Male had told the truth about such issues as the Valium and the loans to Mrs Western. However Dr Symon was prepared to concede that if those matters were not true, that would cause him to have a concern about her testamentary capacity.
Dr Symon saw Mrs Male on both occasions in the presence of her son, Phillip. Although Dr Symon said that Mr Myers was asked to leave at the end of the second interview so that he and the solicitor could clarify whether there was any undue coercion, in my opinion it was not appropriate for Mr Myers to have been present at all when an important aspect of the assessment was a determination of possible undue influence by Mr Myers who was to be the sole beneficiary of the will. Dr Hecker understood the importance of interviewing a client alone when assessing capacity and she saw Mrs Male in the absence of both of her children. Dr Hecker presented her evidence in a forthright manner, independent of the views of any of the parties involved in the case. In my opinion the evidence of Dr Hecker, wherever it differs from that of the other medical practitioners is to be preferred. I accept the evidence of Dr Hecker as set out in her report dated 19 November 2010 in which she says that:[168]
… due to a combination of her frailty and cognitive impairment Mrs Male is very easily influenced by suggestion and the comments from Philip to Dr Cotton are strongly suggestive that this is occurring, feeding her paranoia.
[168] Exhibit P2.
And further (in her report dated 5 August 2010):[169]
I believe Mrs Male does require residential placement to provide appropriate day to day living support to ensure her safety and wellbeing, and in addition an administration order to ensure her finances and assets are managed appropriately in her best interests.
[169] Ibid.
I am therefore satisfied that due to a combination of age, physical infirmity and mental incapacity s 7 of the Act applies.
Conclusion
I turn now to consider the question of undue influence. An analysis of the chronological history in this case discloses a pattern of “the exercise of dominion”[170] by Mr Myers over his mother, Mrs Male, which I summarise as follows:
[170] Johnson v Buttress (infra).
(a)On 21 September 2009, at a time when Mrs Male was angry with her daughter about the move to the Nursing Home and the sorting out of her possessions, and coincidentally with the concern voiced by Mrs Western about the proposal for Mrs Male to loan Mr Myers the sum of $200,000, Mr Myers took Mrs Male to an appointment with a solicitor where she changed what had previously been a long-standing joint arrangement and executed a power of attorney in favour of Mr Myers alone.
(b)Despite Mrs Western’s involvement in the initial arrangements with respect to the sale of the house and her efforts in getting the house ready for sale, Mr Myers arranged for Mrs Western to be excluded when the contract for sale was concluded.
(c)Whatever may have been Mrs Male’s motivation in effecting the change of power of attorney, it is clear that it was a decision that was instantly regretted. At the beginning of October 2009, to avoid a dispute between her children, she expressed a wish for an independent person to look after her affairs. She also requested a family meeting to resolve these problems. However, these proposals were made when Mr Myers was interstate on holiday.
(d)At the same time as arrangements were being made to implement these proposals, Mrs Male expressed a reluctance to sign a medical power of attorney and that reluctance is consistent with her change of heart with respect to the power of attorney signed on 21 September 2009.
(e)On 13 October 2009 Mr Myers returned from holiday. Despite the reluctance expressed that morning by Mrs Male about signing a medical power of attorney, Mr Myers took his mother to an appointment with a Justice of the Peace where she signed a new medical power of attorney in favour of Mr Myers alone.
(f)The family mediation meeting requested by Mrs Male was set for 20 October 2009. That meeting was cancelled by Mr Myers and no such meeting ever took place.
(g)On 19 October 2009, Mr Myers took Mrs Male to stay at his home overnight.
(h)On 26 October 2009 Mrs Western’s solicitors wrote to Mr Myers with respect to the proposed loan to him from the proceeds of sale of Mrs Male’s home.
(j)On 27 October 2009 Mr Myers collected his mother from the Nursing Home, for a period of social leave from that date to 6 November 2009.
(k)Following a request from Dr McKenzie, and before any proceedings were instituted, appointments had been made with Dr Hecker on 3 November 2009 and 6 November 2009 for an assessment of Mrs Male. However, on 6 November 2009 Mr Myers extended Mrs Male’s social leave and she remained with him until 14 December 2009. Neither appointment with Dr Hecker was kept.
(l)On 11 November 2009 Mrs Male wrote a letter to Susan Davies, solicitor, in support of her son’s actions and complaining of her daughter’s harassment. There is no evidence as to what prompted this letter, but the probability is that Mr Myers informed Mrs Male, in an adverse way, of the attempts to have her assessed by Dr Hecker. This would also provide some explanation for Mrs Male’s apprehension when she was later required to see Dr Hecker for assessment in the course of these proceedings.
(m)On 17 November 2009 Mrs Male was notified of the application made by Mrs Western to the Guardianship Board. On the same date, Mr Myers took Mrs Male to see his general practitioner, Dr Crawford, as well as his psychiatrist, Dr Cotton. Mr Myers was present for at least part if not all of the interviews which were conducted by them on that date.
(n)On 20 November 2009 Mrs Western withdrew her application to the Guardianship Board on the understanding that her mother would be returned to the Nursing Home in the near future. However Mrs Male thereafter remained with Mr Myers for a further two weeks.
(o)On 6 December 2009 (following Mrs Male’s return to the Nursing Home on 5 December 2009 from social leave with Mr Myers) staff at the Nursing Home were informed by Mr Myers that they were not under any circumstances to permit Mrs Western to see Mrs Male.
(p)On 7 December 2009, Mr Myers took Mrs Male on overnight social leave. On her return on 8 December 2009 Mrs Male presented the Nursing Home with the list to exclude visitors from contact with her.
(q)On 11 December 2009 the order with injunction made by Judge Lunn on 10 December 2009 was served upon Mrs Male. On the same day Mr Myers took Mrs Male to see his solicitor, at which time Mrs Male executed an enduring power of attorney and guardianship in favour of Mr Myers and also made a new Will with Mr Male as the sole beneficiary.
(r)On 20 December 2009 Mr Myers terminated the services of Dr McKenzie, who had been treating Mrs Male since her admission to the Nursing Home. This was due to an alleged conflict of interest, but Mr Myers did not provide any evidence as to what that conflict was.
(s)On 11 February 2010 Mrs Male endeavoured to make an arrangement to see her daughter via a letter which was sent care of her sister. This resulted in a proposal by Mrs Western to see her mother in the near future. However, on 19 February 2010 after Mrs Male had indicated she would discuss the proposed visit with Mr Myers, the visit was cancelled.
(t)Mrs Western has not been permitted to have any social contact with her mother since 27 October 2009. However, following the Guardianship Board hearing in November 2009, Mrs Male continued to see Dr Cotton on a monthly basis and on 2 July 2010 the first documented complaint about the Valium was recorded and was repeated regularly thereafter.
(u)On 13 September 2010 Dr Symon saw Mrs Male for the first time in the presence of Mr Myers. Mrs Male repeated her allegations about the Valium. Mr Myers elaborated and expanded on those allegations and suggested they went back as far as the 1980s.
(v)On 9 December 2010 a further Will was executed in favour of Mr Myers but there is no evidence as to the reason for that nor the circumstances in which it was signed.
(w)On 18 January 2011 Mrs Male saw Dr Symon for an assessment of her testamentary capacity. Mr Myers was present for most of this appointment, although he was told not to participate. Following that appointment, on 20 January 2011 Mrs Male executed yet another Will which, apart from some minor bequests, was the same as the preceding two Wills and vested all of Mrs Male’s estate in Mr Myers.
(x)On 6 March 2011, when Mr Myers heard that Georgia Gun had visited his mother, he threatened to call the police if Georgia did not leave immediately, although staff at the Nursing Home reported that Mrs Male was enjoying the visit.
It can be seen from this summary that all of the “red flags” referred to by Dr Hecker in evidence are present in this case. Mr Myers has arranged and taken his mother to all of her appointments including those at which documents were executed in his favour. He has been present at, or in close proximity, at the time that each of those documents were executed.
Mrs Male repeated her allegation about the Valium when she gave evidence at the trial and appears to have a genuine belief that her daughter has tried to poison her with it. Although there is evidence of Mrs Male being prescribed a range of medication over the years for her various health problems, which has included Valium under its various brand names, I am satisfied that there is no truth in the allegation that Mrs Western ever used it improperly with respect to her mother or anyone else. However, I am also satisfied that ordinarily Mrs Male is a truthful person, and in that circumstance there are only two possible explanations for her relating this story on such a regular basis. Either it is the product of a delusion, which Dr Hecker thought might be the case, or it is an untruth instilled in her mind by Mr Myers. The probability of the latter being the explanation is supported by the following:
o   The only evidence of Mrs Male being affected by drugs immediately prior to her admission to the Nursing Home is that which emanated from Mr Myers in the course of his evidence at the trial;
o   When Mrs Male first made this complaint, she had not had any contact with Mrs Western for over six months;
o   The first complaint about the Valium was made to Dr Cotton. Dr Cotton said that at the conclusion of each of his appointments with Mrs Male, he verified matters with Mr Myers. I therefore infer that Mr Myers confirmed with Dr Cotton that Mrs Male was telling the truth about the Valium allegations;
o   The statements about the monetary advances to assist Mrs Western in buying and selling houses seems to have first emerged in the course of Mrs Male’s interview with Dr Symon on 18 January 2011. Mr Myers appears to have also supported those complaints by Mrs Male. Dr Symon relied upon the truth of the Valium allegations and the monetary advances as a plank to support his finding of testamentary capacity which preceded the making of the new Will in favour of Mr Myers shortly thereafter;
o   Most significantly, the Nursing Home note of 15 November 2010 records that Mrs Male’s allegation with respect to the Valium was told repeatedly, but usually on return from social leave [with Mr Myers].
In the final analysis it probably does not matter whether the claims made by Mrs Male about the Valium or the monetary advances are the product of a delusion or lies instilled in her mind by Mr Myers. Whatever has caused Mrs Male to believe that these statements are true I am satisfied that Mr Myers has supported and encouraged his mother in the maintenance of those beliefs in a deliberate attempt to further alienate Mrs Male’s relationship with Mrs Western.
Furthermore, there are other “red flags” arising out of the evidence. Mr Myers took Mrs Male for assessment by Dr Cotton, who was his own psychiatrist, in lieu of permitting an independent assessment by Dr Hecker prior to the institution of proceedings. He has discouraged Mrs Male’s association with other relatives and close friends. This includes his direct action in cancelling the family mediation meeting in October 2009 as well as the appointment for Mrs Male to see her daughter following the request initiated by Mrs Male in February 2010. The cancellation of the private meeting at court between Mrs Male and her daughter is probably another example of Mr Myers’ intervention with respect to Mrs Male’s contact with other family members. All periods of overnight leave since at least 27 October 2009 appear to have been spent at Mr Myers’ home. As far as I can tell from the Nursing Home notes, the only outing of a social nature with someone other than Mr Myers in the past year or so was the occasion on 5 April 2010 when Mr Simpson attended at the Nursing Home and for some inexplicable reason took it upon himself to be irate with staff when he discovered Mrs Male’s absence, although this turned out to be an occasion when Mrs Male was out with her sister, apparently with the prior approval of Mr Myers.
I am satisfied that throughout this period, Mr Myers has reinforced a belief in Mrs Male that she should never have been required to go into the Nursing Home and has promoted his plan for her to leave that facility and to reside with him.
I am also satisfied that Mr Myers has instilled in Mrs Male a belief that the Guardianship Board proceedings and the current action are adversarial in nature and constitute an attempt by Mrs Western to take control of her mother’s life, as opposed to an endeavour by Mrs Western to obtain independent financial assistance and advice for her mother, consistent with Mrs Male’s freely expressed wish at the beginning of October 2009.
In Johnson v Buttress[171], the High Court held that:
…wherever the relationship 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 proposed in the latter, the presumption of undue influence is raised. To rebut the presumption it must be affirmatively shown by the donee that the gift was the pure, voluntary well-understood act of the mind of the donor.
[171] (1936) 56 CLR 113.
Dixon J said at pp 134-135:
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 ascendancy or influence over that other, or a dependence or trust on his part. One occupying such a position falls under a duty in which fiduciary characteristics may be seen. It is his duty to use his position of influence in the interest of no one but the man who is governed by his judgment, gives him his dependence and entrusts him with his welfare. (emphasis added)
In this case the relationship of dependence is well-established. Mrs Male is nearly 91 years old. She suffers from a number of physical infirmities and has a degree of cognitive impairment. She considers her son to be her “tower of strength”[172] and at the present time relies upon him for everything. He acts as her chauffeur, he makes arrangements for and takes her to all appointments, he does her shopping and he provides her with outings, including overnight visits to his home.
[172] Transcript p 282.
In Whereat and Anor v Duff[173], after discussing the issue of dependence as referred to in Johnson v Buttress, Asprey JA said:
The onus is upon the party seeking to set aside the gift to establish the facts from which the court will infer that a situation exists where undue influence may have been exerted. These situations will naturally vary from case to case. Once those facts have been shown to have existed, the presumption arises and the onus is then cast upon the donee to rebut it.
[173] [1972] 2 NSWLR 147 at 168 – Judgment of the New South Wales Court of Appeal.
However, to prove that a transaction was made free of undue influence it does not necessarily suffice that the proposal came from the party said to be under undue influence. As Asprey JA further stated:[174]
The question of intention is basic in the law of undue influence. The fact standing by itself that there is evidence that the donor stated that he intended to make the gift does not rebut the presumption. As Lindley L.J. said in Allcard v. Skinner (24), “The influence of one mind over another is very subtle.” The ability of the donor to understand and intend that he is making a gift will not by itself necessarily operate as a bar to equitable relief. In Huguenin v. Baseley (25), Lord Eldon L.C., after remarking upon the evidence to the effect that the donor Mrs. Huguenin had declared her delight in making the gift there in question, in a passage which has been frequently approved, observed: “Take it, that she intended to give it to him: it is by no means out of the reach of the principle. The question is, not, whether she knew what she was doing, had done or proposed to do, but how the intention was produced”: see also Harris v. Jenkins (26),; Bank of New South Wales v. Rogers (27),; The fact that the proposal to make the gift is generated by feelings of trust and dependence in a situation of close relationship is not decisive in the donee’s favour: Spong v. Spong (28),. The question must always be “how has that intention been produced?”: Turner v. Collins (29), per Lord Hatherley L.C. Matters relating to the capacity of the donor, such, for example, as his age, standard of intelligence, character, experience and the like and matters bearing upon the situation in which the donor is placed in relation to the donee are all relevant to the probabilities as to how the intention was produced and, given the appropriate setting, even a person of full capacity may form the intention to make an improvident gift under the undue influence of another: Hoghton v. Hoghton (30),: Johnson v Buttress. (31),.
[174] Ibid at pp 168-169.

In this case the defendant has failed to rebut the presumption of undue influence. Dr Hecker considered Mrs Male was strongly subject to influence. No reliance can be placed on the evidence of Dr Cotton nor Dr Symon for reasons earlier explained. There is no other evidence that any of the transactions was the independent well-understood act of Mrs Male exercising free judgment. In fact, some of her actions, such as the signing of the medical power of attorney on the very day she indicated that she did not wish to do so are proof to the contrary.
If Mrs Male genuinely believed that she had provided substantial sums of money to Mrs Western in the past and/or that she had attempted to poison her with the Valium, those matters would provide some explanation for the exclusion of Mrs Western from the Will. However they do not explain why she would also exclude the children of her deceased daughter, Denise. No satisfactory explanation about that was forthcoming from Mrs Male in evidence and neither Dr Cotton nor Dr Symon appear to have canvassed that aspect of the matter with her.
Having considered all of the evidence, I am satisfied that Mr Myers subjected his mother to undue influence with respect to the execution of each of the documents in his favour, as well as transactions carried out with respect to her bank accounts.
I am also satisfied that Mrs Male is liable in the future to be subjected to undue influence with respect to her estate. In this regard I adopt the comments of Judge Burley in Porker v Porker & Ors wherein he said:[175]
[175] [2007] SASC 217 Unreported Judgment delivered 22 June 2007 at [42].
… the meaning of the expression “liable to be subjected to” is that there is a risk, the degree of which is closer to a probability than a possibility, that in the future the protected person will be subjected to undue influence.
If an order is not made in these proceedings the probability is that Mrs Male will loan Mr Myers the sum of $200,000 previously discussed, which would effectively use up all of the monies left in her account at the Bank. Mr Myers’ proposal for Mrs Male to leave the Nursing Home and live with him on a permanent basis would result in the repayment to Mrs Male of the Nursing Home bond of $350,000. Mr Myers said in evidence that would be invested and apparently used for the benefit of not only Mrs Male, but him and his family. Mr Myers did not give any evidence about his current financial position other than to say that his business would be closed down at the end of the financial year. Mr Myers’ explanation for some of the payments made out of his mother’s account for his benefit, such as the dental and hairdressing payments, was that they were made as a result of his poor financial position. Mr Myers did not provide any information as to the amounts currently owing on his mortgage nor any other debts which may be outstanding following the closure of his business. Other than Mrs Male’s funds there is no evidence of what income will be available for the support of Mr Myers and his family. In my opinion there is a substantial risk that in the event of the Nursing Home monies being released to Mrs Male that Mr Myers will continue to use his influence to apply those funds for purposes other than her benefit.
I turn next to the question which arises under s 7(1)(a) of the Act, ie whether Mrs Male is unable to partly or fully manage her affairs. In reaching a conclusion as to this aspect of the matter one need go no further than the evidence relating to the bank statements and the great number of unexplained transactions conducted on Mrs Male’s Bank accounts. Mrs Male has a broad understanding that her money is held at the Bank, although in evidence it was obvious that she was unaware that she had two accounts. Mrs Male is aware of the amount that she received from the sale of her house and knows about the Nursing Home bond. Apart from those matters it is evident that she has no real understanding of what transactions are being made with respect to her account.
In the course of his submissions, counsel for Mrs Male referred to the decision in H v Nominal Defendant[176] in which Lee J inter alia referred to the comments of Wilson J in Re M[177] in which he said:
Thus prodigality, improvidence, business incompetence facility, of will or excessive generosity, unless due to age, disease, illness, physical or mental infirmity … can never give jurisdiction to make a protection order under this Act. The Welfare State still permits a man to waste or give away his substance unless one or other of those conditions is fulfilled.
[176] [1997] QSC 233, considered.
[177] (1965) NZLR 286 at [387].
Counsel suggested that with respect to the disposition of some of the monies from her account, Mrs Male may have been improvident and she may have been somewhat generous towards her son and his children, but he submitted there was no evidence to show that those acts were caused by or were due to her age or any mental infirmity. I reject that submission. As I have already indicated, I am satisfied that Mrs Male has no present understanding of the management of her accounts and is unaware of the true nature of all the transactions conducted with respect to them. Furthermore, when she gave evidence about this matter, she appeared to believe that at the present time Mr Keogh and Mr Simpson were managing her affairs.
As Judge Burley further said in Porker, when he was referred to the decision in H v Nominal Defendant and Re M, and in particular the passage cited above:[178]
Those opinions must be read in light of the protection given in s 7 to those who by reason of age, disease, illness, etc are subject to or liable to be subjected to undue influence. In other words, although people may be permitted to waste or give away their substance, if the relevant disposition is or likely to be tainted by undue influence, protection is afforded by the Act.
[178] [2007] SASC 217 at [41].
The inference to be drawn from the failure by Mr Myers to produce all of the bank statements relating to his mother’s accounts and his inability or unwillingness to explain the substantial withdrawals therefrom is that Mr Myers has used a substantial portion of those funds for his own benefit. In the absence of the appointment of a manager that situation is likely to continue in the future, in which case there is a real risk that Mrs Male’s funds will be substantially depleted. I am therefore satisfied that by reason of a combination of her age and her physical and mental infirmity, Mrs Male is:
(a) unable wholly or partially to manage her affairs, and
(b) has been subject to or is liable to be subject to undue influence in respect of her estate.
I am therefore satisfied that it is necessary for the court to make a protection order in respect of Mrs Male’s estate.
In view of the history of this matter the person appointed to manage Mrs Male’s estate must be a person independent of any of the parties involved in this action.
I therefore order that:
1.The Public Trustee be appointed manager to take possession of and control and manage the whole of the estate of Maisie Olive Male (“the protected person”) with the powers and duties given and imposed by the Aged and Infirm Persons Property Act 1940 and the Rules of Court made pursuant to that Act. I will hear counsel further as to whether the order should also include powers to be conferred on the manager in addition to those conferred by the Act relating to the investment of any monies comprising part of the protected estate.
2.The protected person must not hereafter make any will or testamentary disposition except with the consent and in the presence of Public Trustee.
3.This order be served on the protected person and Public Trustee within 7 days by forwarding an office copy of it to each of them by prepaid post and that such service be proved by affidavit or statement of facts filed in this action within 7 days of the service.
4.The Parties, Public Trustee and any other person interested may apply for further orders and directions.

Addendum

It is obvious that this family dispute has caused Mrs Male considerable anxiety and distress over the last 18 months. Hopefully, the appointment of the Public Trustee to manage her financial affairs will alleviate some of that stress. However, there are other issues which need to be resolved as a matter of some urgency in the interests of Mrs Male’s future health and well-being. Although they are outside the ambit of my jurisdiction, I have had the advantage of seeing and hearing from Mrs Male and various members of her family and I therefore propose to make some additional comment in the hope that it will be of assistance to the parties and limit further disputes between them.
The question of Mrs Male’s future accommodation should be resolved as soon as possible. Mr Myers has proposed that Mrs Male leave the Nursing Home and go to reside with him. Mrs Male is understandably enthusiastic about a proposal which would see her return to a family environment, as opposed to being a resident of an aged care facility. However, I have earlier expressed my concern about matters relating to Mr Myers’ financial position. Mr Myers has not provided any information, other than a general proposal about arrangements for Mrs Male’s care. He has not provided any evidence as to what support services might be required to assist him in looking after his mother, nor what other arrangements might be required from time to time for respite care such as on occasions when he is absent on holidays with his children. Given her age and health issues, Mrs Male clearly requires a stable environment in which she is provided with 24-hour assistance, seven days per week. Mr Myers referred in evidence to health issues of his own which have required surgical intervention, but he has not provided any information as to how those matters may impact upon his ability to provide full-time care for an elderly and frail woman who at times suffers periods of confusion and in recent times has performed acts of potential self harm.
I agree with the opinion expressed by Dr Hecker that Mrs Male requires a residential placement to provide appropriate day to day living support to ensure her safety and well-being. In my opinion that is best met by her remaining at the Nursing Home, although it would be hoped that she would continue to enjoy regular social leave which in the future should be shared equally amongst her family.
It is also of considerable concern that since this dispute has erupted, Mrs Male’s lifestyle has been substantially affected and she has been denied the opportunity to maintain normal relationships with close family and friends. Mr Myers’ lack of willingness to negotiate with other family members about any of the arrangements for Mrs Male, including those of her family who might like to visit, is yet another reason why it is desirable for Mrs Male to remain at the Nursing Home where she can make independent decisions about her social arrangements and those she might like to have visit her.
It was obvious at the very beginning of this dispute that Mrs Male was very worried about the need to choose between her children. I am satisfied that she loves both of them very much. Regrettably, matters have now reached a stage at which it is unlikely that they will ever be able to reach an agreement as to matters affecting her care and well-being. In those circumstances I believe it is desirable for the matter to be referred back to the Guardianship Board to consider the possibility of Mrs Male being provided with the assistance of an independent person, such as the Public Advocate, who will act in her best interests and who will be able to negotiate with family members on her behalf, thereby avoiding the need for Mrs Male to be embroiled in further family disputes.