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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Western v Male

Details

AGLC: Western v Male [2011] SASC 75
Case: [2011] SASC 75
Decision Date: 5 May 2011

CaseChat Overview and Summary

In the case of Western v Male, the plaintiff, the daughter of the defendant, applied for a protection order in relation to the defendant's estate, arguing that her mother was subjected to undue influence by her son in the execution of Powers of Attorney and Wills. The defendant, an elderly woman residing in an aged care facility, had been diagnosed with a cognitive impairment. The court had to determine whether the defendant was subjected to undue influence and if so, whether the son exercised such influence with respect to a series of transactions and management of bank accounts. The court also had to decide if the situation was likely to continue in the future and if the defendant was unable to manage her financial affairs.

The court found that the son had exercised undue influence over his mother in the execution of Powers of Attorney and Wills, which favoured him. This was evident in a series of transactions and management of bank accounts. The court determined that the situation was likely to continue in the future, and the defendant was unable to manage her financial affairs. The court also found that some medical practitioners had relied on unfounded allegations of misconduct by the plaintiff, which further complicated the situation. However, the court concluded that the defendant had testamentary capacity when executing the Wills in favour of her son.

Based on the findings, the court made a Protection Order and appointed the Public Trustee as the manager of the defendant's estate. This decision was made to protect the defendant from further undue influence and to ensure that her financial affairs were managed appropriately. The court's decision was based on the evidence presented, which demonstrated that the defendant had been subjected to undue influence by her son, and that she was unable to manage her financial affairs due to her cognitive impairment. The court's intervention was necessary to protect the defendant's interests and ensure that her estate was managed in her best interests.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.