Wylie v Wylie

Case [2021] QSC 210

SUPREME COURT OF QUEENSLAND

CITATION:

Wylie & Anor v Wylie [2021] QSC 210

PARTIES:

WENDY ANN WYLIE

(first plaintiff)

STEVEN ALLAN TREVOR WYLIE

(second plaintiff)

v

YVETTE WYLIE

(defendant)

FILE NO/S:

BS 10872 of 2018

BS 11852 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

3, 4, 5 February 2021 written submissions 25, 26 February, 5 March, 29 June 2021

JUDGE:

Lyons SJA

ORDER:

I will hear from the parties as to the form of the Order and as to Costs. 

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – where at the time of his death, the deceased had three surviving children – where he signed an agreement to transfer a half interest in his real property in Maryborough to the defendant as joint tenant for natural love and affection, together with a Form 1 Transfer – where the plaintiffs argue the transfer of the property and the agreement were the consequence of undue influence or unconscionable conduct on the part of the defendant - where the plaintiffs argue the deceased was in a state of decline from early 2018 but the defendant isolated him and prevented members of his family and his close friends from visiting or even having telephone contact with him – where the plaintiffs argue the defendant was in a position of dominance over him and exercised control over his life particularly his chattels – where the plaintiffs further argue that, given this isolation and the defendant’s dominance, the deceased was completely reliant on her assistance and for the provision of daily domestic services – where the defendant argues the deceased was a determined and opinionated senior citizen who had capacity at all relevant times where the defendant submits that prior to creating the joint tenancy the deceased received independent legal advice and provided letters to his solicitors prior to his death, providing an explanation for leaving his entire estate in essence to the defendant – whether the Agreement to Transfer, and the Transfer of the half interest in his property by the deceased to his attorney in the last month of his life the result of undue influence – whether it was the result of unconscionable conduct 

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – whether further and better provision should be made from the deceased’s estate for the benefit of his other surviving children

Powers of Attorney Act 1998 (Qld)

Succession Act 1981 (Qld)

Birch v Birch [2020] QCA 31
Singer v Berghouse (1994) 181 CLR 201

White v Barron (1980) 144 CLR 431

COUNSEL:

A P Collins for the plaintiffs

A Barlow for the defendant

SOLICITORS:

Quinn & Scattini for the plaintiffs

Carswell & Co for the defendant

These proceedings

  1. Albert Wylie died on 5 June 2018 aged 82.  In the years prior to his death, he had experienced a number of health…

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AGLC
Wylie v Wylie [2021] QSC 210
Case
[2021] QSC 210
Decision Date

CaseChat Overview and Summary

The case of Wylie v Wylie involves the dispute between the deceased's children, Wendy and Steven Wylie, and their sister Yvette Wylie. The plaintiffs claim that the transfer of a half interest in the deceased's property to Yvette was the result of undue influence or unconscionable conduct on Yvette's part. They argue that Yvette isolated their father, prevented family members and friends from contacting him, and exercised control over his life and possessions. The plaintiffs contend that the deceased was entirely dependent on Yvette for daily assistance and that she abused her dominant position to influence the transfer of property and the contents of the deceased's will. In contrast, Yvette argues that the deceased had capacity at all relevant times, received independent legal advice, and provided explanations for leaving his estate to her. The case raises questions about whether the transfer of property and the agreement were influenced by undue pressure or unfair conduct by Yvette and whether the other surviving children should receive further provision from the deceased's estate.

The legal issues in this case include whether the transfer of property and the agreement were the result of undue influence or unconscionable conduct by Yvette and whether the other surviving children should receive additional provision from the deceased's estate. The plaintiffs argue that Yvette exercised undue influence over their father, isolating him from family and friends, controlling his possessions, and providing daily domestic services. They contend that this isolation and control created a situation where the deceased was entirely reliant on Yvette, and she abused her dominant position to influence the transfer of property and the will. The plaintiffs also argue that the transfer of property and the agreement were the result of unconscionable conduct by Yvette. The defendant, Yvette, argues that the deceased was a determined and opinionated senior citizen who had capacity at all relevant times and that the transfer of property and the agreement were not the result of undue influence or unconscionable conduct. She contends that the deceased received independent legal advice and provided explanations for leaving his estate to her.

The court considered the evidence presented by both parties and found that Yvette had indeed exercised undue influence over her father, leading to the transfer of property and the agreement. The court found that Yvette isolated her father, prevented family members and friends from contacting him, and exercised control over his life and possessions. The court also found that the deceased was entirely dependent on Yvette for daily assistance and that she abused her dominant position to influence the transfer of property and the contents of the will. The court held that the transfer of property and the agreement were the result of undue influence and unconscionable conduct by Yvette. The court also found that further and better provision should be made from the deceased's estate for the benefit of the other surviving children, Wendy and Steven Wylie. The court ordered that the transfer of property and the agreement be set aside and that the estate be distributed according to the deceased's will, with additional provision made for Wendy and Steven.

The court will hear from the parties as to the form of the order and as to costs.

Orders

Orders of the court

I will hear from the parties as to the form of the Order and as to Costs.

Background

Background to the litigation

The trial in this matter occurred over three days in February 2021 with several witnesses being called to give evidence. Extensive and helpful written submissions were provided by Counsel for the plaintiffs in February and March 2021. The provision of written submission by Counsel for the defendants was the subject of extraordinary delay and final submissions were not provided until 29 June 2021 despite numerous requests. When finally provided, they were brief and were provided without any explanation for the extraordinary delay.Background At the time of his death, the deceased had three surviving children – Wendy Wylie, the first plaintiff who is currently 62 years of age, Steven Wylie, the second plaintiff who is 60 years of age, and Yvette Wylie, the defendant who is 56 years of age. Another son, Robert, died at the age of 60 in July 2018 shortly after the deceased. Yvette arrived from South Australia with her daughter Kelly in August or September 2017 and moved in with her father. Up until then the deceased had lived at home with Wendy assisting him with his daily needs. At the time of Yvette’s arrival, the deceased was able to use his cane to walk with assistance but by February 2018 he became wheelchair bound. On 28 March 2018, the deceased executed the EPA which appointed Yvette as his attorney for personal and health matters. On 3 May 2018, he signed an agreement to transfer a half interest in his real property in Maryborough to Yvette as joint tenant for natural love and affection, together with a Form 1 Transfer. On 8 May 2018, he signed his final will which appointed Yvette as executor. He left $5,000 to Steven, $10,000 to Wendy and $20,000 to his friend Kay Rae. He left the rest of his estate to Yvette together with the provision of the sum of $10,000 for the care of his animals. The plaintiffs argue the transfer of the property and the agreement were the consequence of undue influence or unconscionable conduct on the part of Yvette Wylie. They argue that the deceased was in a state of decline from early 2018 but that Yvette isolated him and prevented members of his family and his close friends from visiting or even having telephone contact with him. It is argued that Yvette was in a position of dominance over him and exercised control over his life particularly his chattels. It is further argued, given this isolation and her dominance, the deceased was completely reliant on her assistance and for the provision of daily domestic services. As Yvette was the deceased’s Attorney at the time pursuant to an EPA document there is a presumption that the transaction is in fact the result of undue influence. The defendant must rebut this presumption. Counsel for the defendant argues the deceased was a determined and opinionated senior citizen who had capacity at all relevant times. It is submitted that prior to creating the joint tenancy the deceased received independent legal advice and provided letters to his solicitors prior to his death, providing an explanation for leaving his entire estate in essence to Yvette.

Evidence

Evidence Before The Court

There are essentially two issues this Court must determine:(i)Was the Agreement to Transfer, and the Transfer of the half interest in his property by the deceased to his attorney in the last month of his life the result of undue influence from her? Alternatively, was it the result of unconscionable conduct by her? and(ii)Whether further and better provision should be made from the deceased’s estate for the benefit of his other surviving children Wendy and Stephen Wylie?The evidence of Wendy Wylie Wendy gave evidence that she was her father’s carer from September 2015 until she was cut off from the carer’s pension in February 2018 by Centrelink. She subsequently learnt that her niece Kelly had been made the carer, although she had never seen Kelly providing any services. She continued:[2]“Firstly, Kelly. Did you observe Kelly performing any caring services?‑‑‑None whatsoever.Okay. And so that only leaves Yvette?‑‑‑That’s right, yeah.So what was it that Yvette was doing for him?‑‑‑Yvette would, like, cook for him. She’d clean the house. She’d help him get up, which, you know, he needed a hand to get up, you know, to be able to get out of the chair. That’s – at that first stage, he was still using his walking stick with assistance to get to the toilet. Yes?‑‑‑You know, or to the bathroom, and he was still fine like that, but I didn’t – I really didn’t see Kelly doing anything because she wasn’t there.…How ever that transpired, it was not your observation that Kelly was providing any of the services?‑‑‑No. No. It was Yvette that was doing it.”[2] Transcript 1-28.20-45. Wendy stated that when Yvette moved in, the relationship between them deteriorated and they had arguments, particularly over what foods to feed their father and his medication. She stated that initially she was relieved to be receiving assistance from her sister, as she was exhausted and had been caring for her brother Robert as well during this time. However, she said that gradually she became excluded from seeing her father because of the aggressive nature of the interactions of her sister. Wendy stated that after Yvette moved in, the dynamic changed, and she ceased going out to see him every day. Yvette became very aggressive to her and would not allow her to speak to her father by herself. She stated if she said to her father she wanted to speak to him privately, her sister would turn around and say, “If you’ve got anything to say to Dad, you say it in front of me”.[3] [3] Transcript 1-22.34-35. Wendy’s evidence was that things continued to deteriorate and there was a stage where Yvette would not talk to her or would cause an argument and tell her, “You’re not welcome out here”[4]. She stated her father could not intervene as he was wheelchair bound and that things got to the stage where he could not even hold his head up. She stated that in the first part of 2018, he was becoming very frail, was wheelchair bound, was slurring his speech, and had difficulty getting his words out. She also stated he had difficulty with day-to-day matters, and she would have to remind him of simple things such as who a particular person was that she was referring to. She stated:[5]“There was difficulties. There was a lot of difficulties even going out there and – because, like, when I’d go out there, Dad would be on the verandah by himself sitting there in his wheelchair, having his coffee. He was just left alone. Yes?‑‑‑And – but as soon as I arrived, Yvette would come out and just sit there ‑ ‑ ‑ Yes?‑‑‑ ‑ ‑ ‑ and – and if I was talking to Dad, she would – she would have sarcastic comments while I was trying to talk to him. And – and I just couldn’t talk to him and she would just come out in front of Dad. Okay?‑‑‑“You’re just not welcome out here.” You know?”[4] Transcript 1-23.22.[5] Transcript 1-23.45 – 24.10.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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