Gillespie v Gillespie[2012] QDC 212

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff is the widow of the late Bruce George Gillespie who died on 14 August 2010 aged 83.

2. [2]
   The plaintiff and the deceased married on 8 December 2002. When they married the plaintiff who was born on 13 May 1940 was 62 years of age and the deceased who was born on 14 November 1926 was 76 years of age.

3. [3]
   The deceased has two sons and a daughter from a previous marriage. When the plaintiff and the deceased married his children were about 46 years of age, 42 years of age and 37 years of age respectively.

4. [4]
   The deceased’s first wife and the mother of his children died on 25 August 1995.

5. [5]
   The defendants in these proceedings are the deceased’s two sons and the trustees in bankruptcy of the deceased’s daughter.

6. [6]
   At the time the deceased married the plaintiff he was the owner of a house property in which he lived at 18 Atkinson Street, Mackay and two home units at Byron Street, Mackay.

7. [7]
   Nine days after he married the plaintiff on 17 December 2002 the deceased transferred all his interest in the house and the home units to his children. The consideration stated in the transfer was for the natural love and affection borne by the deceased for his children.

8. [8]
   The plaintiff seeks in these proceedings:-

1. (a)
   A declaration that the defendants hold the house on trust for the estate of the deceased;

2. (b)
   And order that the transfer of the house to the defendants on 17 December 2002 be set aside for undue influence or as a catching bargain or unconscionable bargain.

9. [9]
   The plaintiff does not seek to upset the transfer of the home units as the deceased expressed in his Wills made 23 October 2005 and 3 April 2006 that his children could maintain ownership of those properties. The home units were sold by the deceased’s children in 2007.

10. [10]
    The certificate of death of the deceased states the cause of death to be Myocardial Infarction (one day), Rectal Cancer (nine months) and Dementia (four years).

11. [11]
    It is not in dispute that the deceased’s daughter Annette brought an application in the Supreme Court in Townsville for orders that statutory trustees for sale be appointed to sell the house and the home units. The application was filed on 2 June 2006. The deceased’s sons Geoffrey and William opposed the application. In Geoffrey’s affidavit filed in those proceedings he stated in paragraphs 4 and 5

“[4] The transfer arose as my father remarried late in life.  His new wife Gloria Dawn Gillespie (nee Paterson) withdrew approximately $40,000 from his accounts and left him with no warning for extended periods including an absence of three to four months shortly after they married.  She subsequently returned.

[5] As I was concerned by Gloria Gillespie’s actions, I approached my father after speaking with my brother and sister in early December 2002 and suggested that the properties be transferred to protect them from Gloria Gillespie’s actions.  It was agreed between my father, brother, sister and myself that my father could remain in the Atkinson Street house for the rest of his life and the rent from the units would in part be used to maintain the Atkinson Street house and otherwise for the benefit of my father.”

William stated in his affidavit filed in those proceedings:

“[3] I agree with paragraph 5 of the affidavit of Geoffrey Gillespie and say that in early December 2002 I spoke with both my brother and sister about the three properties and it was agreed that my father could remain in the Atkinson Street house for the rest of his life and the rent from the units would in part be used to maintain the Atkinson Street home and otherwise for the benefit of my father.”

12. [12]
    The proceedings brought by Annette were settled by agreement between Annette, Geoffrey and William. Basically it was agreed that the two units would be sold. From the proceeds of sale $30,000 would be held in trust to be used for the purpose of paying maintenance, rates and insurance on the house while the deceased resided there and the house would not be sold whilst the deceased continued to reside in the house.

13. [13]
    When the plaintiff gave evidence she said she first met the deceased in early 1998. She met him at the day-time dance at the Masonic Hall. She said there were day-time dances on the Monday and Wednesday morning and a night-time dance on the Friday night each week. At the time she was living in a rented small house at Sarina Beach.  In 1998 she described her relationship with the deceased as her companion, dancing partner.  She said the deceased invited her to go to Goulburn to visit his family late in 1998.  She said she went.  She met members of his family.  She said she stayed in the relationship for about a year with the deceased.  Then she met Geoff Taylor at the day-time dance.  She said she was still in the companionship relationship with the deceased as they still went dancing “we all went dancing together”.  She said she married Mr Taylor in February 2000 and the deceased was the best man at their wedding.  However the marriage with Geoff Taylor only lasted one month.  When she was married to Geoff Taylor they lived in the rented accommodation at Sarina Beach.  She divorced Geoff Taylor.  Then in late 2001 she struck up a relationship with Victor Rakose.  She also met Victor at the day-time dance at the Masonic Hall.  She said she bought a unit with Victor at East Mackay.  She had received approximately $20,000 from her parents’ estate and Victor contributed $30,000 and they borrowed from the bank $50,000.  That was the purchase price $100,000.  She became engaged to Victor in March 2002.  However her engagement came to an end sometime in June 2002.  As with Geoff Taylor she found Victor also very controlling and that bothered her.  She said that the deceased also knew Victor.  He met him at the day-time dance at the Masonic Hall.  She said when they went to the dances with Victor they would pick up the deceased en-route to the dance.  She said in 2002 the deceased asked her to be his companion housekeeper.  However she said she told him that she did not feel comfortable with that arrangement.  She said if they were going to be like that she would prefer that they were married.  She explained the speed with which she moved from one relationship to the other was because she was very lonely and extremely depressed and she had been brought up on a large family.  She was used to having people around her and she was having difficulty coping with living for an extended period by herself.  She was on a disability support pension with Centrelink for depression and anxiety.  She said that was her source of income at the time she restarted her relationship with the deceased.  She said the deceased and her decided to marry in August 2002.  She did not tell his children but the deceased had intimated that he had told them.  In September 2002 they left to drive to Brisbane with the intent of being married.  However the deceased had forgotten his birth certificate.  They went to Goulburn and then returned to Mackay.  They visited some of the deceased’s relations and his son William.

14. [14]
    She said on 23 September 2002 the deceased’s son Geoffrey came round a few days prior to that and he discussed that he should take out a Power of Attorney in the deceased’s interests. Exhibit 15 is a copy of a letter from S B Wright & Wright and Condie to McKay’s solicitors in Mackay dated 11 February 2003 in which it states documents are being enclosed. One of the documents being enclosed is an Enduring Power of Attorney of Bruce George Gillespie 23 October 2002.

15. [15]
    The plaintiff said the deceased and her ultimately married on 8 December 2002 in Mackay. She said they went to Brisbane and stayed with her daughter.  However while they were in Brisbane staying with her daughter she said they received a text message from Geoff Gillespie stating that Bruce needed to return to Mackay for an urgent doctor’s appointment and that if he didn’t do so he would report him as a missing person.  She said as a result of that text message the deceased and her drove back to Mackay.  She said they did not take any steps to ascertain whether or not the message was accurate.  She said we just took it on face value and came back.  She said the next evening the deceased received a phone call from Geoff Gillespie.  She said the deceased told her that Geoff was calling at approximately 1.30 the next day afternoon to take the deceased to a medical appointment.  She was not aware why such an appointment had been made.  It is not an issue that Geoffrey took the deceased to Dr McIntosh and a medical certificate was obtained from Dr McIntosh and then he was taken to the solicitors S. B. Wright, Wright and Condie.

16. [16]
    The plaintiff said that when the deceased returned he did not tell her where he had been or what he had been doing. He was away for approximately four hours.

17. [17]
    When giving evidence the plaintiff identified a document in the deceased’s handwriting and signed by the deceased. The document is Exhibit 10. It states:

“

18/12/02

I Bruce George Gillespie wish to revoke authority for my son Geoffrey Bruce Gillespie to act as Power of Attorney over my affairs.  I appreciate your assistance to this date.  Thanking you.

Signed Bruce Gillespie”

18. [18]
    The plaintiff said that she still had a share in the unit with Victor when she married the deceased. She told the deceased about the unit. She said it did not bother him that she owned a unit with another man. She said she had an agreement with Victor that he was free to live in the unit as long as he cared to, provided he would pay $75.00 a week towards expenses. She said that the deceased said to her was there a way that he could help her and anything he could do for her and she said to him that it would be really good if he were able to give her some money to pay out Victor for his share of the unit. It is admitted in the proceedings that there was withdrawn from the deceased’s Commonwealth bank account a sum of $6,000 and a sum of $31,005.40 on 20 December 2002. The $31,005.40 was used to pay out the unit. $6,000 was mostly used to reimburse Victor for monies he had paid and also to reimburse the plaintiff’s credit card for fees she had paid. The plaintiff said in 2006 she transferred the unit to her daughter. Her daughter did not give her any money for that transfer.

19. [19]
    The plaintiff said she went to McKay solicitors on 15 January 2003. She said that the deceased and her went there to make a new Power of Attorney giving her authority to act on the deceased’s behalf whenever that was necessary. It was to be an Enduring Power of Attorney. An Enduring Power of Attorney is an exhibit in these proceedings from the deceased to the plaintiff and it is dated 15 January 2003. However the plaintiff said when she went to the solicitors to have this document executed she was not aware of the transfer of the house and the units to the deceased’s children by the transfer executed on 17 December 2002. She said she had found out about this transfer in December 2002 when the deceased’s daughter Annette rang her and said “you are living in my house” and the plaintiff thought she had better investigate what was going on while they were at McKay solicitors. She said they filled in a form requesting any documents from Wright & Wright and Condie. A letter from McKay solicitors to the deceased dated 31 January 2003 is Exhibit 14 in the proceedings.  The letter states:

“We also enclose a letter received from S. B. Wright, Wright and Condie the contents of which are self explanatory.  We understand that you believed you have made a Will with them but the account suggests that you actually gifted property away.  Should you wish us to do anything further would you please advise”.

The letter from S. B. Wright & Wright and Condie to McKay solicitors dated 11 February 2003 is Exhibit 15.  It states:

“We advise that our account has now been paid and we enclose the following documents:

1. Will of Bruce George Gillespie dated 17 December 2002;

2. Enduring Power of Attorney of Bruce George Gillespie 23 October 2002.

3. Enduring Power of Attorney of Bruce Gillespie dated 17 December 2002.

4. Our file relating to work done for Mr Gillespie”.

In her evidence the plaintiff said she underlined part of the letter because it was very important and it confirmed that they had gifted the property.  The plaintiff said she talked to the deceased about the transfer of the properties to his children.  However he did not say anything he shrugged his shoulders.  The plaintiff said she made enquiries as to what could be done to reverse those transactions.  However the advice that was given was that while they possibly could it would be very expensive and very protracted.  The plaintiff said she also did not have the funds available at the time to take any steps.

20. [20]
    The Will referred to in the letter from S. B. Wright, Wright and Condie and dated 17 December 2002 is in the agreed bundle of documents, Exhibit 1.  By this Will the deceased appointed his son Geoffrey as sole executor and trustee.  He gave any monies he had in his bank accounts or fixed deposits as at the date of his death to his wife Gloria Gillespie for her sole use and benefit absolutely.  He gave the rest and residue of his estate both real and personal to his three children as shall be living at the date of his death and if more than one as tenants-in-common in equal shares.

21. [21]
    The plaintiff was asked to comment on the deceased’s memory in early 2003. She said his short-term memory was not good.

22. [22]
    The plaintiff said she went to Vanuatu to visit her daughter.  She left Australia on 25 April 2003 and returned on 24 July 2003.  However when she went to Vanuatu the length of her stay was to be indefinite.  A copy of her passport verifies the date that she left Australia and returned.  She said the deceased put her on the train when she left to go to Vanuatu.  He also knew where she was going.  She said she wrote it down for him and asked him for his permission to go.  When she was away she sent him postcards and sent him applications to reside in Vanuatu.  The plaintiff also identified a letter the deceased sent her while she was in Vanuatu.  It states:

“Gloria, love you, miss you, need you, Bruce.”

and has four kisses.  The plaintiff said she received this when she was in Vanuatu.

23. [23]
    The plaintiff said that while she was in Vanuatu she became aware that the deceased had executed an enduring Power of Attorney on 17 July 2003.  However as the evidence shows he executed a Will at the same time on 17 July 2003.  The plaintiff said she was not aware of this at the time.  She became aware of it in 2010.  This Will is also part of the agreed bundle of documents.  By this Will the deceased appoints his son Geoffrey to be executor and trustee of the Will.  He gives all his real and personal property to his children and states the following in paragraph 8:-

“I declare that I have specifically excluded Gloria Gillespie from any benefit under this my Will as:

1. (a)
   She left me shortly after we were married;

2. (b)
   She has had no contact with me since leaving me; and

3. (c)
   She took money from my bank account.”

24. [24]
    As to these statements in paragraph 8 of the Will dated 17 July 2003 the plaintiff said she sent the deceased postcards and also documents from the Vanuatuan authorities. She had also received the letter mentioned earlier in which he expressed his love and his need for her. She also sent him a letter requesting him to get a passport so he could join her in Vanuatu.  She also said she had not taken any money from his bank account without his knowledge.  She also said she had not intended to leave him for good.  The plaintiff said the deceased had not told her anything about this Will when she returned to Mackay from Vanuatu.  The plaintiff said she could not find her postcards and other documents she had sent to the deceased in the house when she returned.

25. [25]
    The plaintiff’s attention was drawn to a Centrelink form dated 23 December 2002 which became Exhibit 18 in the proceedings. It is signed by the deceased. She said she filled in this form for the deceased. Question 23 was answered in the negative which asks whether in the last five years the maker of the form has given away, sold for less than value or surrendered a right to any cash assets, property or income. The plaintiff said at the time of this form she did not know about the transfer of the units and the house.

26. [26]
    The plaintiff said when she returned to Mackay she made enquiries as to why the deceased’s mail was not reaching him. Those enquiries revealed that his mail had been redirected to his son Geoff’s house.

27. [27]
    The plaintiff also identified a Will prepared at the Public Trustee’s Office for the deceased. It was dated 21 November 2003. The plaintiff said when they went to the Public Trustee they saw a lady Kim Luxford. The plaintiff told her that the deceased had expressed a wish to leave the house to her and Ms Luxford said “I’m sorry, Mr Gillespie, you’ve already gifted it to your children, it’s too late”. The plaintiff said the deceased’s reaction to this was not to say anything and he just shrugged his shoulders again. A Will was prepared on this occasion. The deceased appointed the Public Trustee of Queensland to be his executor and trustee of the Will. He gave his whole estate to the plaintiff. However if the gift failed he provided for the whole of his estate to be gifted to his children. An Enduring Power of Attorney was also prepared on this occasion appointing the plaintiff as his Power of Attorney. A revocation of an Enduring Power of Attorney was also prepared revoking the Enduring Powers of Attorney dated 17 December 2002 and 17 July 2003.

28. [28]
    The plaintiff also identified the Will dated 23 October 2005. It is in the plaintiff’s handwriting. She said the deceased and her decided it together. She said when they wrote it they were in the house. She said some days the deceased was more well say with it than others. Some days he actually was almost chatty which he’s not normally and on one of those occasions we did it. She said the deceased wanted to leave the units to his children and he wanted to leave the house to her.

29. [29]
    The plaintiff also identified the Will dated 3 April 2006. It is in the same terms as the 2005 Will. The plaintiff said the 2006 Will was prompted because Annette had been around to the house and called the deceased downstairs to have a conversation with him and she went down and invited him up and she became abusive and said things that were none of her business and the plaintiff thought that Annette was up to something. The plaintiff said we decided to just rewrite the thing in case she was doing something that she didn’t want the plaintiff to know about so she figured may be it was another Will. She thought Annette was up to something.

30. [30]
    The plaintiff also identified a Forgiveness of Debt executed by the deceased in favour of his daughter Annette. This Forgiveness forgives Annette an amount of $58,000. It is dated 16 March 2006.

31. [31]
    Regarding the proceedings commenced by Annette in the Supreme Court the plaintiff said she rang Annette’s solicitors and asked if they were aware that Annette was trying to force her brothers to sell the house because were they aware that her father and the plaintiff lived in the house. She also rang S. B. Wright, Wright and Condie and told them the same thing. They acted for Geoffrey and William. Notwithstanding her contacting these solicitors the plaintiff said that no-one contacted her and the deceased about the proceedings.

32. [32]
    The plaintiff said that from 2006 until the deceased died in 2010 the deceased’s mind and memory was such that he was an avid reader and he had a large library and he read the daily paper and would watch the news and then he would go to bed. She said his mind was fine. It was his memory that was shot. So the plaintiff was his memory.

33. [33]
    The plaintiff said in early 2010 the deceased was an inpatient in a Brisbane hospital for a bowel cancer operation.  However he returned to Mackay.  When they returned to Mackay the plaintiff was not able to go back to the Atkinson Street property.  The plaintiff said Annette had phoned her at the hospital and said that the plaintiff would not be able to look after the deceased as he had terminal bowel cancer and she would not want to nurse him and she would not be able to get into the house.  If she wanted the keys she would have to talk to her brother Geoff.  The plaintiff said she did not have the keys to the house.  The plaintiff said she rang Geoff Gillespie at work and asked him for a key and he said no he wouldn’t give her a key because his father had to go into a nursing home.  The plaintiff said she ultimately got into the house and cared for the deceased in the house until he died.

34. [34]
    The plaintiff said the deceased died on a Saturday morning and later that week she found a typed letter in her letterbox dated 18 August 2010 saying:-

“After father’s passing, we are no longer agreeable to you residing in the house.  We would like you to leave the house vacant and clean and in a state ready for selling by 9.00 am on Wednesday the 25^th August 2010.  You will be able to pick the keys up from S B Wright, Wright and Condie prior to that time but we want the keys returned before 9.00 am on the 25th August 2010”.

The plaintiff said she subsequently received court documents from QCAT in order to have her evicted from the house.  She also received a termination abandonment notice from S. B. Wright, Wright and Condie.  She also rang the tenancy advocacy place in Wood Street, Mackay.  She explained the situation to Margaret Robinson from that service.  As she objected to moving out she told the magistrate that she believed she had an equitable interest in the house.  She had been to the Mackay Regional Legal Centre for assistance.  She made an application to QPILCH.  She was referred to Legal Aid and ultimately to her current solicitors.

35. [35]
    I should say there is a counterclaim by the first defendant and second defendant seeking mesne profits from the plaintiff for the period since she has occupied the house to date. Three hundred dollars per week has been agreed as the reasonable sum for the occupancy of the house.

36. [36]
    The deceased was seen by Jane Murdoch a psychologist in 2003. Ms Murdoch assessed the deceased for cognitive impairments in particular, memory deficits following concerns raised by his family and general practitioner. Ms Murdoch administered a number of psychometric assessments specifically related to general cognitive ability, aspects of memory, learning and executive function. Ms Murdoch’s report is Exhibit 8 in these proceedings and is dated 6 May 2003.  In this report she states the deceased’s general cognitive abilities are intact and there is no evidence of disturbance to executive functions.  Despite this, the deceased performances on the memory tasks show a clear deficit in verbal and visual memory.  These results were also consistent with reports from the deceased’s family members, his general practitioner and observations made by the examiner.  Ms Murdoch states the deceased had acknowledged that he was experiencing problems with his memory.  The deceased had stated he had noticed a problem with his memory for approximately the last 12-18 months.  He noticed particular difficulty with his short term memory stating “I can tell you what I did 50 years ago but I can’t remember what I did yesterday”.  Ms Murdoch states in her report that she encouraged the deceased to attend his general practitioner Dr McIntosh to discuss the possibility of a referral to trial Aricept.  Ms Murdoch states since the deceased is only in the beginning stages of experiencing cognitive decline; a trial of Aricept would be beneficial to determine if his rate of memory deterioration can be slowed.

37. [37]
    Also in evidence in these proceedings are two reports from a psychiatrist who saw the deceased. The psychiatrist is Dr Futter. Dr Futter saw the deceased and the plaintiff on 21 June 2004. The report states they were both positive about improvements in his memory over the last four months. Dr Futter reports that the deceased scored 27 out of 30 on his MMSE which is an improvement of five points since February. Dr Futter states he has arranged for another script for Aricept.

38. [38]
    The plaintiff was asked whether she noticed if Aricept had any effect on the deceased’s memory or mind generally. She stated she noticed that his memory did not become any worse. His mind was always good.

39. [39]
    Finally the plaintiff was asked whether she sought assistance from anyone when back in 2003 she had the conversation with the solicitor at McKay’s about reversing the transfers of the properties. She said she did seek assistance over the years. She said she rang Legal Aid but as it was a property involved they were not able to help her. She rang the Women’s Legal Centre and they said much the same thing and that she would have to engage her own solicitor, a private solicitor. She spoke to another solicitor in Brisbane and he was a solicitor who acted for people from the Australian Pensioners’ Insurance Association.  He gave her much the same advice and said she would need the expertise of a legal man.

40. [40]
    The plaintiff said over the years she looked after the deceased.

41. [41]
    When cross-examined the implication in the questions was that she had quickly formed relationships with other men including the deceased and had quickly ceased some of those relationships. The plaintiff said “at our age, we can’t afford to waste time”.

42. [42]
    The plaintiff agreed that her relationship with the deceased’s children was not a close one. The plaintiff agreed she received a text message from Geoff in November 2002 when he requested that she remove her personal effects from the house. The plaintiff said she discussed it with the deceased and he said that as long as he lived in that house her things could stay in that room which was locked. The plaintiff denied the suggestion that she did not receive the text message from Geoff when she was in Brisbane.  She said the deceased’s response was “we’d better get back”.  She said that was it.  Regarding the occasion that Geoff took the deceased to the doctor and was away the plaintiff said that when the deceased returned he did not discuss with her where he had been that day.  She said she did ask him had he been anywhere else but the doctors and he just shook his head and shrugged his shoulders.  She said the deceased was a man of few words and he kept his own counsel.  He was a person who spoke only when it was necessary and after quiet reflection.  She said she honoured her husband and did not cross-question him or ask him questions he couldn’t remember the answer to, to save him embarrassment.  She said at that time his short term memory was not good.  She said an example of this was that you could have a conversation with him one day and it would appear that he did not recall it the following day.  However she said that the deceased kept driving until approximately 2005.  They would drive around to places like shopping centres and dancing.  The plaintiff said when the deceased agreed to help her pay off her unit with the sum of $30,000 and pay her the further $6,000 in cash from his bank account she was not in any doubt that he knew exactly what he was doing.  She had no concerns about his state of mind at that stage.  She said that he knew what he was doing in that instance.  She said towards the end of January 2003 she became aware that the two units and the house had been transferred to the three children.  She said she did raise that with the deceased at that stage.  She said she asked him why he did it and he said he did it because Geoff had told him that it was to avoid death duties when you kick the bucket.  Regarding seeking advice the plaintiff said the deceased had not sought legal advice.  The deceased had lost a considerable amount of his drive and his decision making.  He didn’t make decisions.  He would usually say “you do what you think best, love”.

43. [43]
    Regarding 2005 and 2006 the plaintiff did not accept when cross-examined that the deceased’s condition had deteriorated quite considerably. She said his memory was not good. He was on Aricept and he was by now on the full strength Aricept after a six month period with the half strength and when he went to see Dr Futter the psychiatrist he said he was so pleased with his progress and his mental score had gone further than any other client he was very delighted with the deceased.

44. [44]
    The plaintiff also said when cross-examined that in January 2003 the deceased continued doing his banking for quite some time and on Friday morning he would do his banking and shopping. He remained relatively the same during 2003.

45. [45]
    Further when cross-examined about the propositions in the Will dated 17 July 2003 she said none of those propositions were correct. She said she had maintained contact with the deceased after she had departed for Vanuatu.  She took money out of his bank account for her fare with his permission and that he was happy to pay for that.  She said he offered.

46. [46]
    Further when cross-examined about the deceased in 2005 the plaintiff agreed that he was suffering from Alzheimer’s. She also agreed that his condition fluctuated from day to day. She said some days he wasn’t as good. Not pretty bad. The plaintiff said when his Will was prepared his handwriting had deteriorated. When asked about anything he would shrug his shoulders and say “its up to you, love, whatever you think is best”. She said when the Will was drafted that particular day he was quite cool, calm and collected. It was probably one of his better days. She said they did not do it all at once. She said when you have a poor memory your powers of concentration are considerably reduced. She said the Will dated 3 April 2006 involved essentially the same process. It was just in almost identical terms.

47. [47]
    Regarding the proceedings brought by the deceased’s daughter Annette the plaintiff when cross-examined would not quite answer the question that Geoffrey came around to speak to the deceased on more that one occasion. The plaintiff seemed to answer that he did come around but did not answer whether Geoffrey assured them that he would be doing everything he could to stop Annette from succeeding on the application.

48. [48]
    The plaintiff agreed when cross-examined that her relationship with the deceased’s children was not a particularly good one. That remained the case right up until the deceased passed away. She agreed there was a lot of tension. She said there was a lot of distrust and there was also a lot of threats against her. She did not trust the children particularly. She also felt they didn’t like her. She said that was the position even before she actually met any of them.

49. [49]
    When asked about the transfer of her unit to her daughter the plaintiff agreed it was on the same basis as the transfer by the deceased to his children. However she said when she did it it was (the natural love and affection for her to her daughter). However the natural love and affection for their father from the Gillespie family evaporated very quickly after the transfer was signed.

50. [50]
    The plaintiff called Albert Arthur Dillon. He is about 80 years of age. He has resided in Sarina as well as Mackay. He knew the deceased for about 15 years. He knew the plaintiff for a longer period. He knew the plaintiff before he knew the deceased. The deceased and the plaintiff attended the dances that Mr Dillon attended. He witnessed the deceased’s Will dated 23 October 2005. He also witnessed the deceased’s Will dated 3 April 2006. He said the deceased signed and then he signed and another bloke signed. The other bloke used to live under the house in a room downstairs. He said he would visit the deceased about two or three times a week. He would stay with the deceased for two or three hours and sometimes only an hour. When he spoke to the deceased he thought the deceased gave the right answers. When the deceased signed his Will dated 3 April 2006 he thought the deceased was all right. The deceased seemed to him to be in a good spirit. He said as the years progressed from 2006 to when he passed away he thought the deceased’s mental state was all right. The deceased seemed all right to him and they got on well. He said when the deceased signed that Will he seemed to know what he was doing. He also observed that the plaintiff would look after the deceased. She used to go and get him cups of tea and get him his meals. He also said he never met any of the other family. He said he did not think he would know his family if he fell over them. When cross-examined he said that they would talk about the times that the deceased was a meat inspector. The deceased would not talk about politics or religion. He also said there was nothing that he observed that gave him the slightest hint that the deceased might have had Alzheimer’s. He did say that the deceased appeared to have problems with his memory. He said that was in the context of having to yell sometimes and he would have to raise his voice at the deceased so the deceased understood what he was talking about. When it was pointed out to him that he was not being asked about the deceased’s hearing he said that as far as the deceased’s memory was concerned “I don’t think it was real bright either”. From about 2006 he found the deceased to be all the time the same. Right up until the time of his death. In his opinion there was little change in the deceased.

51. [51]
    The plaintiff also called Beverly Jean Vella. She is a Justice of the Peace of 40 years standing. In 2006 she was doing volunteer work as a JP in the Mackay Court House. She identified her signature on a document dated 16 March 2006. She remembers that day when the deceased came in with his daughter and he just wanted her to witness his signature because he wanted to give her that money and she just took a little bit more notice of it because money was involved and his daughter was with him. The document releases the deceased’s daughter and her husband of an amount of $58,000 owing by the deceased’s daughter and her husband to the deceased. Ms Vella said that she asked the deceased whether he was happy doing that and he replied in the affirmative. She said that the deceased just seemed normal. She said if she had any concerns about his mental state she would not have done it. Her log book of the time records that the deceased was “under no duress from the daughter” and “fully understood” and “appeared fully lucid”.

52. [52]
    The plaintiff also called Allison Jean Burany. She is the daughter of the plaintiff. She said she first met the deceased at the end of 1998. The plaintiff and the deceased came down to her house in Chermside in Brisbane.  The plaintiff introduced the deceased to her as her very, very good friend, dancing partner.  She said after they left to go back home if she called and the deceased picked up he would know who she was absolutely.  She said they visited her in September 2002.  At that stage they described their relationship to her as engaged.  She said they actually wanted to get married at that time but the deceased did not have his birth certificate with them.  Ms Burany drove into town to make arrangements for the birth certificate to be obtained in the future.  She next saw them around about 9 December 2002.  This was at her house in Brisbane.  At this time they had got married that morning.  It was not a surprise to her that they were married.  The surprise was that they had married that day.  She said while they were there she recalls her mother showing her something on her mobile phone.  It was a text message and the signature line had “Geoff” on it.  She said the general idea of what was on the message was that the deceased was being called back to a doctor’s appointment supposedly on 17 December and that if he didn’t respond and get back he would be reported as a missing person.  She said that after the message was received there was a little bit of discussion between the plaintiff and the deceased and her family and as a result of that discussion basically the deceased said that he just needed to get back.  Ms Burany said that she had visited her mother and the deceased in Mackay on about four or five occasions.  She would stay with them for about three days up to a week.  While she was in Mackay she did not meet any of the deceased’s children.  She also recalled a Christmas in 2006.  She said the deceased was fine.  Regarding his memory she noticed that there was a little bit of forgetfulness here and there but he definitely knew who she was and he was a thorough gentleman who welcomed her into his home.  This was how she found him in 2004.  In 2005 she found him to be hospitable and exactly the same.  She said during the Christmas visit she did not meet any of the deceased’s family.  After 2006 and up to when he passed away she noticed that he slowly started to lose his memory.  She said when the deceased was in hospital in Brisbane in the early part of 2010 she looked after the deceased while her mother went to New Zealand for a short time to see her sister.  She took her mother’s place.  She went to the hospital everyday and was there several hours at a time.  During that period she did not see any of the deceased’s children.  She said that her mother transferred to her a unit property a few years ago at the end of 2007.  The circumstances of this transfer were basically she was the custodian for the family at the time so it was basically just put in her name.

53. [53]
    When cross-examined Ms Burany said the transfer of a unit by her mother to her in 2007 was as a gift. She did not pay any money for it. She just accepted the transfer. She believes the unit to be worth about $200,000. She has stayed there several times. She accepted it was a unit that her mother had bought before she married the deceased from the estate from her grandparents. She accepted it was an item of property that her mother owned while she was married to the deceased. She said when cross-examined that the first time she was asked to recall the text message was a few months ago. She accepted that it was received essentially 10 years ago and the first time she was asked to recall the text message was a few months ago. When it was put to her that there was no such text message sent she said “I don’t think I’d come all the way from Brisbane and lie about something.  I definitely saw it”.  She accepted that from discussions she had with her mother she was well aware that the relationship between her and the deceased’s three children was a strained one.  She said from the period when she first met the deceased to when he passed away in 2010 after a few years there was a little bit of forgetfulness but realistically only towards the end he seemed to her like he did not remember a lot.  She said in the period when he came down to Brisbane with her mother immediately after being married he was fine.  She said the deceased seemed quite right and easy to maintain a conversation.  He did not seem to suffer from forgetfulness and he seemed to be functioning perfectly normally.  She said she first started to notice a deterioration in him probably in the last few years and it was just forgetfulness.  It was quite a big difference between around 2008 and 2010.  That seems to be the period where he went downhill fairly quickly.  Ms Burany also said that when she’d speak to the deceased on the phone he seemed perfectly coherent.  He easily maintained a conversation.  However it did deteriorate and her thinking was around 2007 slowly.

54. [54]
    When re-examined Ms Burany accepted that the date her mother and the deceased were married was the 8^th rather than the 9^th December 2002.

55. [55]
    The plaintiff also called Ms Murdoch the psychologist. I have already mentioned that she has provided a report which is Exhibit 8 in these proceedings. I have also mentioned what her findings were.

56. [56]
    There appears to be an error in her report in that she states she was told by the plaintiff that she had known her husband for five years and married him in November 2002 in Goulburn. Ms Murdoch said this is what she would have been told by the plaintiff. Ms Murdoch agreed that Dr McIntosh the deceased’s medical practitioner had expressed concerns about the gradual deterioration in the deceased’s memory. Ms Murdoch said that from her report she found the deceased to be lucid, coherent, responding to her questions and seemed to be functioning at a normal level. She did note though he did not sort of understand why he was there or recall his reason for being there and she thought there was some inconsistency as what he reported his alcohol intake to be compared to what his wife reported. She also noted some slightly inappropriate comments being made by the deceased which would may be, be suggestive of some decline but nothing of significance. Ms Murdoch also stated that the deceased had advised her that he authorised his son to be his Enduring Power of Attorney.  Ms Murdoch stated that her tests led her to conclude that the deceased was showing the early stages of a dementia process, or some mild cognitive decline.  Overall she felt his general intellectual abilities were intact or an average or within an average range for his age which means he had the ability to process information, understand information etc.  However he had some memory deficits which were inconsistent with his general cognitive abilities and that would suggest that there was a start of some early cognitive decline.  Ms Murdoch said dementia was a condition that can deteriorate.  She said dementia and if one is talking about Alzheimer’s dementia, as the dementia progresses it can start to affect their other cognitive capacities, their ability to reason, their language, gross motor movements, all sorts of functioning.  She said Alzheimer’s dementia is the most common dementia.  Ms Murdoch stated that based on the test results she felt the deceased could make decisions.  At a given point in time, he would just not necessarily be able to recall those decisions at a later date.  Ms Murdoch said in cross-examination that dementia is not something that can be reversed.

57. [57]
    In re-examination Ms Murdoch said that the use of Aricept can slow the rate of deterioration but it does not necessarily improve it or reverse it.

58. [58]
    Three medical certificates were tendered as evidence. The first is one from Dr Perumal dated 23 October 2002.  In this certificate Dr Perumal states that the deceased is of sound mind but has episodes of short term memory loss.  The other two certificates are from Dr McIntosh.  The first is dated 17 December 2002.  This certificate states the deceased is of sound mind and capable of making decisions and understanding the implications of Enduring Power of Attorney.  The other certificate from Dr McIntosh is dated 20 November 2003 and it states that Dr McIntosh has examined the deceased today and found him to be able to understand the implications of signing an Enduring Power of Attorney and is of sound mind to make that decision at this time.

59. [59]
    The first defendant and second defendant called Dr McIntosh to give evidence. He said the deceased was his patient from 1994 until the early 2000’s. He said he treated the deceased for some lung issues and chronic obstructive airways disease and then in the later years the deceased started having issues with his memory. On 17 December 2002 he assessed the deceased for his competency to make legal decisions. The doctor recalled that he was asked by lawyers that were dealing with matters at the time to assess the deceased. Dr McIntosh noted that several months before he had seen the deceased other doctors in the practice had given a hand-written note saying that the deceased was of sound mind but he thought there was some issue that was arising at that time that required an accurate or more detailed assessment. Dr McIntosh said he did a brief mental assessment of the deceased. The deceased scored six out of ten on this test. Dr McIntosh said he was aware the deceased had some short-term memory problems. He said the deceased was starting to become more forgetful. Also there was an incident prior to his appointment with Dr McIntosh when the deceased got lost on his way to the surgery. Dr McIntosh said this was a classic short-term memory loss of a gradual developing dementia. Dr McIntosh said in the course of the examination or assessment of the deceased he found his capacity and his understanding to be good. He said the deceased had a short-term memory loss and he did the same kind of assessment on three occasions over the following twelve months. However his short-term memory was starting to be affected but his more complex understanding of issues appeared to be intact. Dr McIntosh said he was quite happy that the deceased understood these issues even though he might not be able to remember things that were happening from day to day.  Dr McIntosh said his basic understanding of principles were intact.  Dr McIntosh said the other occasions that he saw the deceased was on 16 July 2003.  Dr McIntosh noted in his notes that the deceased said openly that he had a desire for his son to take over all his financial affairs and he understood that would give him full control over everything he owns.  The deceased said to him “if I can’t trust my son who can I trust”.  His MSQ score at that stage was seven out of ten.  Dr McIntosh said his assessment of the deceased on 16 July 2003 in terms of his capacity and understanding had not changed from 17 December 2002.  Dr McIntosh said the next time he was asked to carry out an assessment was 20 November 2003.  He said at that stage the plaintiff had attended with the deceased to discuss an Enduring Power of Attorney.  Dr McIntosh again went through the same process and at that stage the specific request was that they wanted a certificate again stating that he was of sound mind and capable of understanding the principles of the Power of Attorney process and signing over legal documentation.  They were also travelling abroad so needed some clarification relating to travel.  Dr McIntosh said they indicated they were intending to travel to Vanuatu with a view of living in Vanuatu.  Dr McIntosh said he produced a similar certificate to what he had produced previously.  He said his assessment was similar to or identical to the assessments he had carried out on the two previous occasions.  He said the deceased’s overall mental status had not changed specifically.  He said as with the previous two occasions he had assessed the deceased he was satisfied that the deceased had the capacity and understanding.  He said there was no obvious overall change in the deceased’s condition.  As to change in the deceased after the end of 2003 Dr McIntosh said the deceased was started on Aricept which was a medication to assist his memory and he did get some benefit from that treatment as was evidenced from correspondence from the psychiatrist.  The last time he saw the deceased was sometime in 2005.  At that time it was an overall check-up and he was getting increasing breathlessness and lung problems.  The last time Dr McIntosh carried out an assessment for his mental capacity was on 20 November 2003.

60. [60]
    When cross-examined Dr McIntosh confirmed that Dr Perumal was a colleague in his practice. Dr McIntosh also accepted that there is another examination that can be conducted for mental state called a Mini Mental State Exam. He did not perform that examination but rather performed the MSQ Mental State Questionnaire. As to the Mini Mental State Exam one was performed on 19 February 2002 when the deceased scored 28 out of 30. Dr McIntosh agreed that indicated no significant cognitive impairment. Then came the assessment by Dr Perumal on 23 October 2002.  Dr McIntosh said he did not perform the MMSE because the scores throughout the year previously were also very good and the MMSE just takes a lot longer and Dr McIntosh said the MMSE will not tell you whether the person actually understands the legal implications of the issue.  Therefore Dr McIntosh spent the majority of his time discussing the deceased’s understanding of the more broader legal problems rather than getting a score (MMSE) which was not what he was being requested to do.  Dr McIntosh said he was hopefully asking the deceased appropriate in depth questions about whether he had that understanding or not.  Dr McIntosh said he specifically asked the deceased was he aware that if he gave a Power of Attorney the attorney has full right to make decisions.  Dr McIntosh agreed he did not specifically discuss with the deceased his transferring his units and his house.  He said he specifically can say that he discussed in the event of the deceased signing his rights that it would give those people the full control over everything he did without any comeback from him.  Dr McIntosh said he was not being specific about what was the risk but Dr McIntosh knew if the deceased signed his Power of Attorney away to someone else they would have full rights to do whatever they liked with it whether it was in his best interests or not and the deceased did understand that and verbalised that because that was specifically Dr McIntosh’s understanding of a Power of Attorney.

61. [61]
    Dr McIntosh said the deceased was the subject of a Mini Mental State Examination on 4 April 2003. On this occasion he obtained a score of 27 (out of 30). Dr McIntosh agreed that indicated no significant cognitive impairment had been identified.  Apparently another examination was done on the same day indicating a score of 28.  Dr McIntosh said he did not consider that to be unusual that two were done on the same day.  Dr McIntosh’s answer was a little difficult to understand but it seemed to be that he was completing some pro forma health assessment on the computer system and that apparently makes one go through it twice.  Dr McIntosh was asked about the assessment on 16 July 2003.  He could not remember whether lawyers arranged the appointment.  However on this occasion his notes indicated that the deceased openly stated his desire for his son to take over all his financial affairs and his understanding was that he would give him full control over everything that he owns and that he said “if I can’t trust my son who can I trust”.  The next appointment was on 6 August 2003 when the Mini Mental State Examination revealed a score of 25.  Again Dr McIntosh agreed that indicated no significant cognitive impairment had been identified.  Then there was the appointment on 20 November 2003.  Dr McIntosh says that “Gloria and Bruce attending to discuss Enduring Power of Attorney.  One certificate stating he is of sound mind and capable of understanding the principles”.  Dr McIntosh gave a certificate on that day.  They also wanted a certificate of fitness for travel and to reside in Vanuatu.  Then a year later there is an appointment on 11 October 2004.  The entry in his notes indicated that a health assessment was due.  Further the deceased needed a driving licence.  Further the notes indicate “memory not really changing”.  A MMSE was not applied on that occasion.  Dr McIntosh said as a consequence of Dr Futter’s reports he presumed he made a clinical decision to continue the deceased on Aricept.  Dr McIntosh also referred to an attendance on 27 June 2005 when there seemed to be conflict in the family.

62. [62]
    The first defendant and second defendant called John Charles Kidd the solicitor whom the deceased saw on 17 December 2002. Mr Kidd said in 2002 he was a solicitor. He said he was a consultant with the firm Wright Wright and Condie in Mackay. He said he had a limited recollection of his dealings with the deceased but he did recall his dealings with him. He recalled that the deceased and one of his sons presented at Wright Wright and Condie’s office. His recollection was that they came in cold off the street. He recalled seeing them and asking what the problem was or what they wanted legal advice about and the deceased indicated that he was concerned that he was involved or had been involved with a lady. He said the deceased said he was concerned that she was in layman’s terms maybe trying to rip him off. Something had triggered that concern and Mr Kidd had a recollection and he said it was a vague recollection that the deceased recently had gone south with that lady either to Brisbane or somewhere south of Mackay and something profound had happened while he was down south. Mr Kidd said whether the deceased had been to see someone and he did not know who it was and signed something or something had happened that had led him to Mr Kidd, Mr Kidd could not remember. He recalled the deceased was reasonably old. He recalled the deceased saying that he wanted to make sure that in the future if he was suffering from some sort of event where he did not know what he was doing that he did not do something that he did not really want to do. Mr Kidd said the deceased was quite clear and coherent when he was talking to Mr Kidd and the deceased was realising because he could not remember what had happened in Brisbane or down south that he did have some sort of problem.  Mr Kidd said on that basis the deceased said he wanted to transfer a property or some properties to his children.  He said although he had no recollection he would have taken the deceased aside and his son who was with him out of earshot into another room.  Mr Kidd said he would have taken the deceased to another room and taken very clear and detailed instructions and given him a bit of grilling as to whether he really wanted to do this himself or whether he was being influenced by somebody else to do that.  Mr Kidd said he did this because he had been down a few dry gullies in his time and he knew that these things can be fraught with danger if you just take instructions from somebody and you find out that they’re only doing it because of influence from somebody else.  Mr Kidd also said that he would have, although he did not have any recollection of doing it, have referred the deceased to a medical practitioner for a certificate from an expert as to whether the deceased did have the capacity to understand what he was doing.  Mr Kidd had a recollection that he did get a medical certificate.  Mr Kidd said he would have questioned the deceased at length without the other person being there and it would have only been after he got the medical certificate he would have then done what the deceased instructed him to do.

63. [63]
    Mr Kidd also said he had a general discussion with the deceased just to get his sort of basic mental capacity to carry on a conversation. He said he would have said to the deceased “you realise if you do this, there’s no going back. You can’t transfer a property to somebody and then say oops, I made a mistake I want you to transfer that property back”. Mr Kidd said he would have said that. Mr Kidd recalled a case where a person had transferred property to another person and there was a misunderstanding about whether the property was merely being loaned and that ended up into a horrendous court case and it involved a solicitor getting struck off. Mr Kidd said he would have been very mindful of saying to the deceased this is it mate. You know, if you do, you know, you can’t ever go back on it and he would have been clearly informed about that by him. Mr Kidd also said he would have although he could not recall it, but he would have said “are you being influenced by any of your children?”. Like have you been promised that if they do this, they’ll do this for you or anything like that. Mr Kidd said it was clear from his recollection the deceased was happy with what he was doing and what he was doing was to ensure that if he had another relapse in the future whereby he was taken away in strange circumstances and asked to sign something by this other person that Mr Kidd had spoken about, that there’d by no ramifications for his family.

64. [64]
    Mr Kidd said in evidence if he had formed the view that the deceased was being unduly influenced he would have “bushed him”. Mr Kidd said he would not have acted and without hesitation he would have said “if you are being influenced by this, I don’t want to have anything to do with it”.

65. [65]
    Mr Kidd also identified his signature on the transfer executed 17 December 2002. He confirmed later in his evidence that with respect to the transfer he would have explained to the deceased “yeah, - you know, this is the end of it.”’. Mr Kidd said he had insisted on the doctor’s certificate so that he could be sure he was dealing with a person who was capable of giving him proper instructions. Mr Kidd also recognised his signature at the bottom of the will that was prepared. He also confirmed the power of attorney. Mr Kidd witnessed the deceased’s signature. Mr Kidd has also provided the certificate in the document.

66. [66]
    When Mr Kidd gave evidence he was asked to note that the transfer was stamped with only two thirds of the duty. He could not explain why that might have occurred except that there may have been some suggestion that one of the transferees was going to live in the property. Mr Kidd confirmed he had never seen the deceased before.

67. [67]
    When Mr Kidd was cross-examined he said that as far as he could recall the transfer of the properties was so that the deceased’s properties were protected for him so that some other person would not be able to rip them off. He confirmed that the deceased had given some vague reference to something he thought had happened when he was taken down south but he could not actually tell Mr Kidd what that was. He said he was not able to glean from the deceased what he thought may have happened to him down south somewhere. He said the deceased was very vague about that. Mr Kidd said the deceased had an idea the lady had taken him to see somebody. He could not remember whether he had signed something like that and he was just concerned that something had happened that he did not know what it was. Mr Kidd agreed that if the deceased’s son Geoffrey was leading him in suggesting to him Mr Kidd would not have gone through with the transaction and he would have “bushed” the deceased.

68. [68]
    Mr Kidd also agreed when cross-examined he took no notes. When it came to whether Mr Kidd had discussed an option for the deceased to retain a life interest in one of the properties Mr Kidd said he could not recall whether he discussed life interests or at all with the deceased. Further in cross-examination Mr Kidd said the deceased was quite clear when he said something had happened sometime down south with some person. He did not agree there was no clarity with the deceased. Mr Kidd said he considered from the medical certificate that the deceased had the capacity to execute the transfer and the power of attorney in the will coupled with Mr Kidd’s assessment of him by talking to him on that day. He said all those documents were executed at the one time. He was unable to say which was executed first. When asked whether he could recall any discussions the deceased had about his wife Mr Kidd said the discussions he had with the deceased concerned a lady who’d taken him south. Whether or not it was his wife or dare he say girlfriend of something like that he did not know.

69. [69]
    When re-examined Mr Kidd agreed that in hindsight he should have taken some file notes.

70. [70]
    The first defendant Geoffrey Gillespie gave evidence. He said he is a baker by trade. He said when his mother died his father was living at Seaforth. His father then moved into town to make it more convenient because he loved to read at the library. He said after his mother passed away he would visit his father very regularly probably at least once a week. Sometimes his father came out to visit him. He described his father as a gentleman, old school, easy going, good conversation, when he made his mind up, he made his mind up, you couldn’t move it, independent sort of person. His father was able to care for himself. He was probably a better cook than his son. When he was with his father they’d fish or sit around and just watch TV together. His father was not a huge talker. He was more of a listener. He said his father would drive out to visit him. Finally when Geoffrey and his wife had children his father came out and visited them. He said after the death of his mother his father was devastated. He remained that way for a substantial amount of time. At that stage his father did his own banking and shopping. Geoffrey had no involvement with the deceased’s finances at that stage. His relationship with his father leading up to the end of 2002 was quite good. He said regarding his father’s memory up to 2002 was quite good. Geoffrey said his father had some occasional memory loss but we all do that. He became aware that his father was suffering from dementia around 2005, 2006. He was not aware of it at the end of 2002. He accepted that in December 2002 the three properties that were owned by his father were transferred to himself, his brother and his sister. He recalled that happening. He said it had been brought up several times when his parents were alive that the properties or anything that they owned would be sold up and separated equally three ways, except for his mother’s jewellery which would naturally go to her daughter. He said after his mother died nothing had changed in that respect. His father was under the same impression. He said that would have been spoken about with his father about three or four times usually when his father would get depressed about life. When Geoffrey gave evidence he said regarding what his father would say to him that he could not remember the exact words but along the lines of you know “when I pass away don’t forget that the properties will be sold not left so there’ll be no arguments between the children because they’ll be sold up and divided equally”. When Geoffrey gave evidence he said that his father mixed quite well and went to the dances. His mother and father both danced very well. He said regarding conversation his father would talk when he thought it was necessary to talk. He was very good. However religion and politics were definitely off the table. His recollection of meeting the plaintiff was around 2000. His father accompanied her to the dances and they were good friends. He probably saw the plaintiff maybe once or twice. The plaintiff then disappeared off the scene for a while. His father was a little bit depressed about it. She did return to the scene later around about 2002. Geoffrey became aware that his father got married to the plaintiff after the fact. He said when they returned to Mackay his father told him. Geoffrey did not get to know her very well. He did not exchange phone numbers with her. He was not aware of the plaintiff’s mobile phone number and never has been aware. He was not invited to the wedding. He agreed he assumed his father’s power of attorney in October 2002. He said his father had had enough of the body corporate in regards to the units and all he wanted to do was to retire and enjoy his life. He was over it and he wanted Geoffrey to take over the reigns of that. Geoffrey was not receiving any of the income from those units. Geoffrey agreed to take over the responsibility for the units.

71. [71]
    When Geoffrey gave evidence he said when Gloria came back on the scene he was concerned that she was back on the scene and he discussed that with his brother and sister. Geoffrey said in evidence that he did not understand how a person could be involved with his father, went for a trip down to New South Wales, being introduced to his family, coming back and then marrying another man, then apparently divorcing that man, getting engaged to another man, then apparently leaving that man and coming back to his father. Geoffrey said that worried him. He was concerned about her intentions. He rang his brother or they called him and they discussed the matter and what they thought about it. He said he raised his concerns with his father. When asked what he said to his father he said on a Sunday that he went around to watch television with him he made the comment that he was concerned about his property and money that he had in an account. He did not ask his father what the nature of his relationship with the plaintiff was. He said the response from his father when he raised his concerns was to just shrug his shoulders and the conversation ended. When Geoffrey gave evidence he said his father raised it again. He thought it might have been the following weekend when he was visiting. He said his father expressed to him that this would be a good time for him to transfer the property over, which he intended to do, and his mother. His father did not give an explanation. Geoffrey did not quiz his father about that because he’d learned early in life not to argue with his father. When asked what the conversation was between his father and himself he said although it was a long period of time ago but it went along the lines that its just a good time for him to transfer the properties over, which he intended and my mother intended in the first place, and thought it was a good period of time. Geoffrey said he did not question why at this particular time he was interested. Geoffrey said he has no idea. He said this conversation was had with his father before he got married. He said his father had not given any indication that he was intending to get married. Geoffrey said he contacted his brother and sister and told them and asked them what to do because he is not a legal person. He said they informed him what to do and he thought Annette made an appointment for him. He said this probably happened the next day. Geoffrey said he did not have a solicitor that he went to. He did not know Mr Kidd at all. He said Wright Wright and Condie were just solicitors his sister pulled out of the book as far as he knew. He said he rang up the solicitors and asked was there anything that his father needed before coming and he said that he will need a medical certificate because of his age to say he was competent in doing so. He said somebody rang and made the appointment with Dr McIntosh who had been his father’s general practitioner for a long time. An appointment was made. He said he probably rang his father to remind him of the appointment. He said he was basically the chauffer to drive over, pick his father up from his home and take him over there. As far as he recalled they went to the doctors first and then to the solicitors. He said on the way back there was conversation between himself and his father about what the plaintiff should be told. He asked his father whether he wanted him to come in with him while he told her what had transpired and his father said “no, that’s my – my responsibility”. Geoffrey said he did not in fact tell the plaintiff that day what had transpired. He understood that his father did not want that mentioned. Regarding his father being aware of what he was doing that day Geoffrey said he definitely knew what he was doing. Geoffrey said his father asked for it to be done and he was fully aware of what was being done. He went out to the doctors, told the doctor, that this is what he wanted done. When he went to the solicitors he said to the solicitor this is what I want done. He knew what was going on. Regarding whether any contingency had been put in place to ensure his father could stay in the house Geoffrey said he was not a legal person but he was under the impression that there was something put in place but obviously there was not and that “trust me, he would never have left that house over my dead body”. He said the solicitor had explained to his father that if he went ahead with the transfer he could always be kicked out. His father’s reaction was “if you can’t trust your son, who can you trust?”. He said although once the transfer ultimately went through he could have had the ability to evict his father there was no way in the world he would have done that. Geoffrey said he was brought up differently to that. He said after the transfer went through there was never any conversation about it. He was never asked to reverse it.

72. [72]
    When Geoffrey gave evidence he accepted that his relationship with the plaintiff after he became aware that his father had married and they came back from Brisbane was extremely strained.  He was just on talking terms and he did not particularly like her.  He said his father raised with him why he married her.  He said he needed someone to look after him.  He said that he became aware the plaintiff had travelled to Vanuatu in 2003.  He said his father said in relation to some letters that he threw on the table “look, she’s gone to Vanuatu”.  Apparently his father had contacted the police.  When asked why he had contacted the police his father’s response was to shrug the shoulders.  He continued to see his father while the plaintiff was in Vanuatu.  He said his father asked him to take over the reigns of the accounts.  His father said that he had retired and should not have to worry about those sorts of things.  Geoffrey said that he informed his father that they would have to go through the whole thing all over again and go to the solicitors and go to the doctors and get it done again.  His father shrugged his shoulders again.  Geoffrey said that he did it all over again.  They got a medical certificate and they went to the solicitors.  He obtained the correct documents for his father so he could access his bank accounts and do his bank accounts for him.  He went to Centrelink so they could make sure that it was correct there.  He also had to pay some tax bills for him just to make sure everything was right.  His father did not indicate any expectation of the plaintiff returning.  He also arranged for the re-direction of his father’s mail to his address.  He said once the transfer of the units took place the rent was used for the upkeep of the units and the house that his father lived in.  He said regarding discussions with his brother and sister in relation to his father remaining in the house until he passed away he said “it was blatantly obvious that dad would always live there.  It was his house.”  He said when the plaintiff returned from Vanuatu the regularity of his contact with his father dropped off.  It dropped off because of the conflict between the plaintiff and himself.  He did not want it to upset his father.  He did visit the house when he could, mainly when he knew that the plaintiff was out of the house.  He continued to see his father over the ensuing years up to may be 2008/2009.  After 2008 or 2009 he found it painful going around there.  He said his wife kept in touch with the plaintiff just so he knew that his father was still alive and all right.  His father did not use the phone.  In the period leading up to when he ceased all contact with his father his father’s state of health was not very good.

73. [73]
    When giving evidence Geoffrey explained that he got a phone call from his brother informing him that his sister wanted to sell the units. There was some problem with her finances. He told his brother that the units were then in place as a revenue for his father not for her. Later on it was amended and she wanted to sell all three, including the house that his father was residing at. Geoffrey said he got very angry. He said he was never going to concede his sister’s application. He said he did raise this with his father and the plaintiff. He kept them informed which upset his father. He told his father that in relation to him staying in the house not to worry about it and it would be over his dead bloody body. He said agreement was reached with his sister. He understood the effect of the settlement to be that his father was to retain long term tenancy of the house and the units would be sold and divided up. A portion of that would go into a trust account to be kept for the purposes of the upkeep of the house. He said regarding the provision in the agreement that his father could stay in the house that was insisted upon by his brother and himself. Also in relation to part of the sale proceeds of the units being kept for the upkeep of the house that was insisted upon by his brother and himself. Geoffrey said that the rates were paid out of this account until it ran out and then he has been paying the rates ever since. He also gave evidence of repairs done to the house. The account ran out about three years ago. Thereafter Geoffrey has been paying out of his own pocket for the expenses for the house.

74. [74]
    When Geoffrey gave evidence he denied ever suggesting to his father that if the properties were not transferred, that death duties would have been payable on his death. He also denied sending a text message to his father in early December advising him of a medical appointment and if he failed to show up for that he would be declared a missing person. Regarding the dispute with his sister he said that he does not have a sister and he does not speak to her.

75. [75]
    When cross-examined he agreed that when he first had his discussion with his brother and sister about the plaintiff and protecting those properties from the plaintiff his father was not a party to those discussions. He was not sure how long it was between when he had those discussions and spoke to his father about the subject. He said during his cross-examination “I’m struggling with dates”. Further he said “this is 10 years ago”. He could not be precise about the arrangements for the execution of the transfer. He denied sending a text on the plaintiff’s mobile phone about having to get back to Mackay for the medical appointment. He said it was his father saying he wanted it done. He agreed that he was worried about Gloria transferring the properties to herself. Regarding the agreement that his father could remain in the house for the rest of his life he said this was a verbal agreement. Regarding when it was agreed he said it was a case of common knowledge that his father was there to stay. There was no hint of kicking his father out. He did agree that his father thought that death duties were ridiculous and just another way of grabbing money. When cross-examined about giving the units back he agreed that if his father wanted them back he could have had them back. He said he did not think they were his to do whatever he liked with. He always thought his father could have them back if he wanted them similarly with the house. He said if his father had wanted the house back and wanted it transferred back into his name he could have had it. He would have signed the transfer. He agreed he did not think these properties were his at all for all time. He said it was just what his father and mother wanted.

76. [76]
    When further cross-examined, Geoffrey agreed that he had said to Ms Murdoch in a phone call in 2003 that his father’s memory was shot to pieces. He also agreed that he told her that his father was easily led and suggestible. He said notwithstanding Dr Perumal in December 2002 said his father had episodes of short term memory loss his own view of his father’s short term memory was that it was shot to pieces. He agreed his own view was that there had been a gradual deterioration over the past two to three years. He said regarding his father and or Gloria’s health declining such that they needed to move into a nursing home or a high care residential facility or if the plaintiff’s health had declined and his father wanted to go with her that he and his sister and brother would have agreed to put up the house as the bond for the nursing home. He said if his father and the plaintiff wanted to move to Brisbane he would have allowed the house to be sold to allow them to come down to Brisbane.  He said he was under the impression that the units and the house were being held for his father until he died.  He said although his father never asked for them to be transferred back he would have.  It never came up.  He could have had his property.  If his father wanted it to be given back to him he would have done it.

77. [77]
    The second defendant William Gillespie also gave evidence. He said he is the school principal. Before his mother passed away he probably had phone contact every two to three months. Occasionally he visited them in Mackay. After his mother passed away he maintained contact with his father. He said he had a close relationship with his father. He said there were indications given by his father as to what he wished to do with his property upon him passing. He said his mother and father had always wanted everything that they had gained as part of their time together to be shared equally among the children. They were also very keen that if they gave something to one child, they would also give something else to the other child because they always wanted to be fair. There were instances of that occurring. He said it was always agreed between his mother and father and the children that whatever property they had accrued in their time together would be evenly distributed between the three children. The only difference would be that his sister Annette would get all the jewellery. His father’s attitude had not changed after his mother had passed away. He could not recall any discussion specifically between himself and his father in relation to that. He first met the plaintiff in probably late 2002. His father and the plaintiff came to visit. They were passing through going to Goulburn and they stopped overnight. After that he did not maintain any form of regular contact with the plaintiff. He became aware that his father had married the plaintiff. He thought either his brother or sister may have told him. He was not invited to the wedding. His reaction to learning about his father marrying was a little concerned but he was not his father’s keeper so it was his father’s decision. Leading up to the end of 2002 he found his father’s faculties to be that he was forgetful. He seemed to be OK. His driving had deteriorated from the time he was a younger man but he seemed to be quite OK. He did not have any concerns about his capacity. He seemed quite OK when he visited him. However the last time he visited him he was very concerned about his faculties. Regarding the transaction in late 2002 when his father transferred to himself, his brother and his sister the two units and the house that he was living in he said his memory was a bit vague because it was so long ago and most of his contact would have been over the phone and he is not sure who originated or what it was so his understanding was that there had been discussion between Geoff and his father and that his father had said that he was going to sign all the properties over to the three children. He did not speak to his father about it. He did not speak to his father at a later stage. His involvement was to have material sent down to him and he signed it and he was not sure whether he faxed it back or it was emailed to him and he signed it and it was faxed back. That was the limit of his involvement in the transaction. He said he visited his father again after that time. He did not believe the topic of the transfer of the properties ever came up. He said his father never indicated to him that he wanted any of the properties transferred back. He was not sure when was the last time he saw his father alive. The circumstances when he last saw his father was he brought his two younger children up to visit their grandfather who they had not seen since they were very young. It was also time for this new partner at the time to come up and meet his brother and also for their children to get together. He said his father was very confused and did not know who was Geoff and who he was. His father looked very frail. He said regarding the dispute with his sister in 2006 he was one of the respondents. He said it did cause a souring of the relationship between himself and his sister. He said he tried to do everything he could to stop what his sister was seeking. He said when he signed the transfer that resulted in his father’s properties being transferred to his brother, his sister and himself he believed that the money from the units would be put into a bank account and they would be used to allow his father to live in the residence for the rest of his natural life. It was never his intention that his father would not live in the house. Regarding his discussions with his brother and sister he said he assumed that his father had gifted the properties to them and that it was up to them to make sure he spent the rest of his time there. He did not think there was something formal but it was just what you do and that’s the right thing to do you wouldn’t do that to your father. He said in relation to his sister’s application for all the properties to be sold his attitude was one of hostility. He said unfortunately they settled the application. He understood the upshot was that the two units would be sold, money would be set aside and an equal share then would be for the three of them. The money set aside would be put in an account for the upkeep of his father. The money that his brother had spent would be paid to him and the proceeds would be split three ways. He said that his father would stay in the house. That was the most important thing.

78. [78]
    When cross-examined he said the main reason for the transfer was to move the properties as his mother and father had the wish that the properties would go to the children. He said his mother and father had always wanted everything that they had earned during the course of their marriage to go to the children and that was the reason why he believed it was transferred. When asked whether the particular concern that prompted the transfer was a concern to keep the properties protected from the plaintiff he said they were following his father and mother’s wishes. He said they did have concerns about the plaintiff. He said it was an issue that the properties might not be left to him, Annette and Geoff if they did not get them transferred because the plaintiff might have some access to them. His affidavit sworn in the Supreme Court proceedings was shown to him and he agreed there was no reference in what he swore to that the transfer occurred because his mother and father always wanted them to have the properties and that’s why they were transferred. He said his understanding about the units being transferred was that they would be kept for a support for his father to the end of his natural life and then once his father died everything would be sold and the proceeds would be split between the three children. He could not answer the proposition that if his father wanted the properties back what would he have done. He said he would have to have had a discussion with his father about that. He could not say yes or no whether he would have transferred the properties back. He said if the question arose they owned the units and they would have to talk to father about if he needed the money back what was the circumstances, what was going on. He said his father did not have the immediate control over what would happen to the units after the transfer to him. He agreed that his father’s ability to take income from the units was entirely dependent upon the whims of himself and his sister and brother. He also agreed that his father’s ability to use the units as security so that he could move into a retirement village or a nursing home was entirely at the whims of himself and his sister and brother. He also agreed that his father would have no say in the 2006 dispute between the children. He said his intention was that as soon as his father died the plaintiff would be told to pick up and move out.

79. [79]
    The deceased’s daughter Annette Gillespie did not give evidence. I took it that she was available to give evidence. However a decision was made by the third defendants her trustees in bankruptcy not to call her.

80. [80]
    The plaintiff claims that a resulting trust arose in the circumstances.

81. [81]
    There is a rebuttable presumption that where a person pays the whole purchase price of property which is purchased or transferred into the name of another, the second person holds the property on a resulting trust in favour of the first person. The presumption may be rebutted by the presumption of advancement for example where a father intends to gift property to his children (Shephard & Anor v Cartwright & Ors (1954) 3 All ER 649, 654 per Viscount Simonds; Calverley v Green (1984) 155 CLR 242, 246 per Gibbs CJ, Mason and Brennan JJ at 255-256 and 257-258 and 270 per Deane J; Tabtill Pty Ltd v Creswick; Creswick v Creswick & Ors [2011] QCA 381 at page 59.

82. [82]
    The intention at the time of the disposition is the relevant intention (Calverley v Green (1984) 155 CLR 242 at page 255-256 per Mason and Brennan JJ.

83. [83]
    Alternatively the plaintiff says the transfer of the house should be set aside because of undue influence or unconscionable dealing.

84. [84]
    The jurisdiction of a court of equity to set aside gifts inter vivos which have been procured by undue influence is exercised where undue influence is proved as a fact, or where, undue influence being presumed from the relations existing between the parties, the presumption has not been rebutted (Johnson v Buttress (1936) 56 CLR 113 at 119 per Latham CJ).

85. [85]
    Further wherever the relation between donor and donee is such that the latter is in a position to exercise dominion over the former by reason of the trust and confidence reposed in the latter, the presumption of undue influence is raised (Johnson v Buttress per Latham CJ p 119).

86. [86]
    It must be affirmatively shown by the donee that the gift was … “the pure, voluntary, well-understood act of the mind” of the donor (Johnson v Buttress p 119 per Latham CJ).

87. [87]
    It may not be necessary in all cases to show that the donor received competent independent advice … (per Latham CJ p 119).

88. [88]
    But evidence of such advice has been given is one means and the most obvious means, of helping to establish that the gift was a result of the free exercise of independent will; and the absence of such advice, even if not sufficient in itself to invalidate the transaction, would plainly be a most important factor in determining whether the gift was in fact the result of a free and genuine exercise of the will of the donor (Johnson v Buttress per Latham CJ p 120).

89. [89]
    In Johnson v Buttress Dixon J at page 134 said:

“The basis of the equitable jurisdiction to set aside an alienation of property on the ground of undue influence is the prevention of an unconsciousness use of any special capacity or opportunity that may exist or arise of affecting the alienor’s will or freedom of judgment in reference to such a matter.  The source of power to practise such a domination may be found in no antecedent relation but in a particular situation, or in the deliberate contrivance of the party.  If this be so, facts must be proved showing that the transaction was the outcome of such an actual influence over the mind of the alienor that it cannot be considered his free act. … 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 … when he takes from that man a substantial gift of property, it is incumbent upon him to show that it cannot be ascribed to the inequality between them which must arise from his special position.”

90. [90]
    In Bank of Credit and Commerce v Aboody (1990) 1 QB 923 at page 967 the Court of Appeal in England said: ... “a person relying on a plea of actual undue influence must show that:- … (a) the other party to the transaction (was someone who induced a transaction for his own benefit) had the capacity to influence the complainant; (b) the influence was exercised; (c) its exercise was undue; (d) its exercise brought about the transaction.”

91. [91]
    The two jurisdictions to grant relief because of undue influence or because of unconscionable dealing are distinct. They both depend upon the effect of influence (presumed or actual) improperly brought to bear by one party to a relationship on the mind of the other whereby the other disposes of his property. Gifts obtained by unconscionable conduct and gifts obtained by undue influence are set aside by equity on substantially the same basis (per Brennan J in Louth v Diprose (1992) 175 CLR 621, 627).

92. [92]
    In Louth v Diprose Deane J said at page 637:

“It has long been established that the jurisdiction of courts of equity to relieve against unconscionable dealing extends generally to circumstances in which:

1. (i)
   A party to a transaction was under a special disability in dealing with the other party to the transaction with the consequence that there was an absence of any reasonable degree of equality between them; and

2. (ii)
   That special disability was sufficiently evident to the other party to make it prima facie unfair or ‘unconscionable’ that that other party procure, accept or retain the benefit of, the disadvantaged party’s assent to the impugned transaction in the circumstances in which he or she procured or accepted it.  Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable: ‘the burthen of shewing the fairness of the transaction is thrown on the person who seeks to obtain’ or retain the benefit of it”.

93. [93]
    The principle of equity when unconscionable dealing is alleged applies whenever one party to a transaction is at a special disadvantage in dealing with the other party because illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affect his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands (per Kitto J in Blomley v Ryan (1954-56) 99 CLR 362 at 415).

94. [94]
    In Powell v Powell & Anor (2002) WASC 105 McLure J regarding the requirement that the influence must be “undue” quoted Lord Shaw of Dunfermline in Poosathurdi v Kanappa Chettiar (1990) LR 47 Ind App 1 at 4 where he said that even though influence may be proved, such influence “… may be used wisely, judicially and helpfully.  But … more than mere influence must be proved so as to render influence, in the language of the law, ‘undue’.  It must be established that the person in a position of domination has used that position to obtain unfair advantage for himself, and so to cause injury to the person relying on his authority or aid”.

95. [95]
    Further at paragraphs 133-135 McLure J in Powell v Powell & Anor said:

“There is also an overlap between the factors which put a person at a special disadvantage or disability and those which render a person more vulnerable to a relationship of influence: Bridgewater v Leigh (1998) 194 CLR 457 of 490; Louth v Diprose (1992) 175 CLR 621.  Further, inadequacy of consideration or other substantive unconscionability may be used to support an inference of a relationship of influence or a special disability: Blomley v Ryan (1956) 99 CLR 362 at p 485 per Fullagar J.

As stated earlier, the dominant party bears the burden of proving that the transaction was a voluntary and well understood transaction.  That burden can be discharged in a variety of ways.  The facts which must be proved in order to satisfy the court that the claimant was free from influence vary because of the different types of relationships in which the relevant influence may vary in kind or degree: Johnson v Buttress (supra) per Dixon J at 135.

It will be relevant to know whether the transaction was justified by any sufficient reason which is usually linked to the question of whether it was an improvident transaction. The presence or absence of independent advice is also a relevant factor”.

96. [96]
    In Bridgewater v Leahy (1998) 194 CLR 457 at p 477 the majority remarked that in that case as to undue influence with respect to the transfers and the deed, capacity to make a judgment was not determinative.  The majority said at p 477 the “critical question” was not whether the transferor “understood the nature of the documents” but whether he executed them “as the result of the free exercise of his independent will”.

97. [97]
    Further at paragraph 118 the majority in Bridgewater v Leahy said:

“We have referred to the primary judge’s conclusion that Bill had ‘the capacity then to know what he was doing and to make informed decisions about the disposition of his property’.  That, however, is not an answer to the question whether, on the primary facts, the conclusion should have been reached that advantage was taken of Bill’s disadvantaged position.  Even with respect to the doctrine of undue influence, as distinct from that dealing with unconscionable conduct, equitable principles may be invoked to set aside a gift where a donor is perfectly competent to understand and intend what he or she did.  In Huguenin v Baseley, Lord Eldon LC said, in a well-known passage:

‘Take it, that she intended to give it to him: it is by no means out of 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.’

Thus, as Turner LJ put it of the disponor in Rhodes v Bate, the case was not determined by deciding that she had been ‘perfectly competent to understand what she did’ and had not been ‘of weak mind’.  Further, as Lindley J observed in Allcard v Skinner, enthusiasm itself may be the result of the exercise of undue influence.”

98. [98]
    Further at paragraph 122 in Bridgewater v Leahy the majority said:

“The equity to set aside the deed may be enlivened not only by the active pursuit of the benefit it conferred but by the passive acceptance of that benefit.”

99. [99]
    The defendants deny the plaintiff’s entitlement to the relief claimed. The defendants also say the plaintiff should be denied relief because of her acquiescence laches and delay. Further the defendants say the plaintiff is estopped from pursuing the relief claimed.

100. [100]
     The first defendant and second defendant have referred me to Baburin v Baburin [1985] 2 Qd R 101 where Kelly SPJ said “the two circumstances, always important in such cases, are, length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy”.

101. [101]
     Further I was referred to Hampton & Ors v Richardson (2009) QCA 328 where Keane JA with whom McMurdo P and Muir JA concurred held “equity does not permit the bringing of claims which are so stale that their benefit is itself contrary to the conscience of equity.  Lord Blackburn described the principle expressed in the equitable defence of laches in Erlanger v New Sombrero Phosphate Co, “a court of equity requires that those who come to it to ask its active interposition to give them relief, should use due diligence, after there has been such notice or knowledge as to make it inequitable to lie by”.

102. [102]
     In relation to the estoppel by convention pleaded by the defendants the first defendant and second defendant referred me to the decision of Brereton J in Moratic Pty Ltd v Gordon (2007) NSWSC 5 at paragraph 32 where His Honour said there were five matters necessary to establish a conventional estoppel:-

1. (a)
   That the plaintiff has adopted an assumption as to the terms of its legal relationship to the defendant;

2. (b)
   That the defendant has adopted the same assumption;

3. (c)
   That both parties have conducted their relationship on the basis of that mutual assumption;

4. (d)
   That each party knew or intended that each party act on that basis;

5. (e)
   That any departure from the assumption will occasion detriment to the plaintiff.

103. [103]
     I was also referred to the decision of McPherson J in Queensland Independent Wholesalers Limited v Coutts Townsville Pty Ltd [1982] 2 Qd R 40 at 46 where His Honour said:

“The word “conventional” in this context carries connotations of agreement, not necessarily expressed but to be inferred, or at a least a demonstrable acceptance of a particular state of things as the foundation for the dealings of the parties … The acts or conduct relied upon must point plainly, if not unequivocally, to the assumption put forward as a conventional basis of relations”.

104. [104]
     Sentence 87 of the Powers of Attorney Act 1998 provides:-

“87 Presumption of undue influence

The fact that a transaction is between a principal and 1 or more of the following –

1. (a)
   an attorney under an enduring power of attorney or advance health directive;

2. (b)
   a relation business associate or close friend of the attorney;

gives rise to a presumption in the principal’s favour that the principal was induced to enter the transaction by the attorney’s undue influence.”

105. [105]
     As far as credit is concerned I did find the plaintiff sometimes was long winded when giving answers to questions and sometimes did not answer the question. Nevertheless I was favourably impressed by her when she gave evidence notwithstanding those factors I have just mentioned and consider her to be a truthful and reliable witness. I accept the plaintiff’s evidence.

106. [106]
     The plaintiff’s evidence that the text message was received from “Geoff” while she and the deceased were in Brisbane after they had married is supported by the evidence of Ms Burany.  Although Ms Burany is the plaintiff’s daughter and on that account I should exercise caution accepting Ms Burany’s evidence, nevertheless I was favourably impressed by Ms Burany and consider she was a truthful and reliable witness.  I accept Ms Burany’s evidence.

107. [107]
     I also consider Mr Dillon to be an honest witness. Even though he knew the plaintiff and the deceased for a number of years I do not think on that account he exaggerated his observations in favour of the plaintiff. Although he did not see any change in the deceased after 2006 and up until the deceased died I consider I can rely on Mr Dillon’s observations up to and including the time Mr Dillon witnessed the Will made on 3 April 2006. I consider thereafter Mr Dillon was not looking for any changes that may have been occurring with his friend whom he was visiting.

108. [108]
     I was favourably impressed by Ms Vella. She was truly an independent witness. I consider her to be a truthful and reliable witness. I accept her evidence the deceased appeared normal. I accept her observation of him that he appeared to be lucid to her. As her evidence relates to a time in 2006 I consider her evidence supports the observations of Mr Dillon up to that time that Mr Dillon witnessed the deceased’s Will dated 3 April 2006.  I accept the evidence of Mr Dillon and Ms Vella.

109. [109]
     I consider the evidence of Ms Murdoch the psychologist to be uncontroversial. I accept her evidence. While the deceased may have had some memory deficits in 2003 he still had his executive functions intact. He was also commenced on Aricept. Dr Futter’s reports would seem to indicate that the Aricept was having the effect of preventing the deceased’s condition from deteriorating.

110. [110]
     I consider Dr McIntosh’s evidence to be uncontroversial. I accept his evidence. I accept also the medical certificates that have been tendered from Dr Perumal dated 23 October 2002 and Dr McIntosh dated 17 December 2002 and 20 November 2003.

111. [111]
     I consider Mr Kidd was honestly trying to remember what happened when he saw the deceased and the deceased executed the transfer of the properties into the names of the children. He was at a disadvantage in that he was trying to recall events that occurred about 10 years ago and he did not make notes at the time. However, I see no reason not to accept his evidence. In the circumstances I accept his evidence. That does not mean I accept that because the deceased said to Mr Kidd he was seeing him because some lady (presumably the plaintiff) may be trying to rip him off and because of something that happened down South the deceased executed the transfer as a result of the free exercise of his independent will.

112. [112]
     As to the first defendant Geoffrey I consider he has sworn an affidavit in the proceedings in the Supreme Court that was not accurate. For example the allegation in paragraph 4 of his affidavit made a claim that the transfer of the properties to the children was in the context of the plaintiff withdrawing approximately $40,000 from the deceased’s accounts. As the evidence indicates some $37,000 was withdrawn. However those withdrawals occurred on 20 December 2002 which was three days after the transfer was executed by the deceased. Further he swore the transfer of the properties to the children was in the context of the plaintiff leaving the deceased with no warning for extended periods including an absence of three to four months shortly after they married. The plaintiff’s passport proves she did not leave to go to Vanuatu until April 2003 returning in July well after the transfer was executed on 17 December 2002.  Further, he swore in that affidavit it was those “actions” by the plaintiff that led him to approach his father whereas in his evidence before me he said it was the plaintiff’s “intentions” that led him to approach his father.  It seemed to me those intentions were implied from the plaintiff coming back on the scene and having had other relationships with other men that were of short duration rather than something the plaintiff had done in relation to the deceased’s property.

113. [113]
     In so far as the second defendant William is concerned he would appear to have been away from the family in New South Wales at all material times.  I consider what he knew of the facts would be only what he was told by his brother Geoffrey.

114. [114]
     Therefore although I am prepared to accept some of Geoffrey’s and William’s evidence I do not accept all of their evidence.

115. [115]
     I accept over the years on occasions the deceased and his first wife expressed to their children their intention to leave their property they had accumulated to their children when they died.

116. [116]
     However, I do not accept the evidence of Geoffrey that before executing the transfer of the three properties to the children, the deceased had expressed to Geoffrey it was a good time to transfer the three properties to the children.

117. [117]
     I find it was Geoffrey who expressed to the deceased that it was a good time to transfer the three properties to the children. I find Geoffrey did this on his own behalf and on behalf of his brother and sister to ensure they did not lose their inheritance in the event the deceased left some or all of his property to the plaintiff.

118. [118]
     I find during the period 2002 to about 2007 the deceased had occasional memory loss. However, when he made the Wills on 23 October 2005 and 3 April 2006 and appointed the plaintiff as his executor under those Wills I find he was of sound mind, memory and understanding.

119. [119]
     On 3 May 2012, McMeekin J appointed the plaintiff administrator of the estate of the deceased for the limited purpose of prosecution of this proceeding. As a consequence of His Honour’s order I do not accept the plaintiff requires probate of the last Will of the deceased to be entitled to the relief sought in these proceedings.

120. [120]
     I find when the deceased executed the transfer of the properties to his children Geoffrey was a person whom the deceased trusted and relied upon for his financial affairs. The deceased had given in favour of Geoffrey an Enduring Power of Attorney on 23 October 2002. Also in October 2002 the deceased wanted Geoffrey to take over the responsibility for the units and executed another Enduring Power of Attorney on 17 December 2002. Even when the deceased saw Dr McIntosh on 16 July 2003 the deceased said regarding Geoffrey taking over his financial affairs, “if I can’t trust my son who can I trust.”

121. [121]
     I find by reason of s 87 of the Act when the transfer was executed by the deceased that gave rise to a presumption in the deceased’s favour that the deceased was induced to enter into the transaction by Geoffrey Gillespie’s undue influence.

122. [122]
     I find when the transfer was executed the Enduring Power of Attorney dated 23 October 2002 was in force or the Enduring Power of Attorney executed by the deceased in favour of Geoffrey Gillespie on 17 December 2002 was in force. On either basis the presumption of undue influence by reason of s 87 of the Act arises in relation to the transfer.

123. [123]
     I find the presumption of undue influence by reason of s 87 of the Act has not been rebutted. Further, I find the transfer was brought about by the undue influence on the part of Geoffrey Gillespie, that is actual undue influence or undue influence presumed from the circumstances.

124. [124]
     That is I find Geoffrey Gillespie sent the text message to the plaintiff’s mobile phone intending to create a sense of urgency. Further, he said to the deceased something about death duties intending to motivate the deceased to transfer the properties to the children before his death. Further, he told the deceased it was a good time to transfer the properties to avoid the plaintiff’s “intentions” at a time when the plaintiff had not done anything to demonstrate any intentions towards the deceased’s property.

125. [125]
     Further, I find when Geoffrey Gillespie did those things he was a person the deceased trusted and relied upon. Further, the deceased was elderly and in a position of special disadvantage in dealing with his children who were much younger and mentally more agile than the deceased.

126. [126]
     Further, I find the transfer was clearly improvident for the deceased at that time. The deceased was no longer the owner of his real property and in particular his home. The deceased was left without the means to move to a nursing home for himself and his wife if he so chose to do that later.

127. [127]
     I do not accept the children agreed when the transfer was executed that the deceased could live in the house until he died. Although Geoffrey when cross-examined said the agreement with his father was that his father could have the properties back if he asked for them when William was cross-examined he was not so forthcoming. Soon after the transfer was executed, I find Annette rang the plaintiff and said words to the effect that the plaintiff was living in Annette’s house. Further, Annette in 2006 was not honouring any agreement to allow the deceased to live in the house.

128. [128]
     I find the deceased’s statements to Mr Kidd to the effect the plaintiff could rip him off and something profound happened down South that the deceased wanted to avoid happening were ideas Geoffrey Gillespie induced the deceased to believe. I find there was no basis for those ideas put forward by Geoffrey to the deceased. I do not accept the advice Mr Kidd gave the deceased overcame Geoffrey’s undue influence over the deceased.

129. [129]
     I find what the deceased said in paragraph 8 of his Will dated 17 July 2003 were ideas induced in the deceased by Geoffrey. I find there was no basis for those ideas.

130. [130]
     I find the transfer of the house was not made by the deceased by the free exercise of his will. I find it would be unfair for the children of the deceased to retain the benefit of the transfer of the house.

131. [131]
     In addition I find the transfer of the house by the deceased to his children was unconscionable for the same reasons as the transfer was due to the undue influence of Geoffrey.

132. [132]
     I do not accept a resulting trust arose. That is because I find the deceased intended to transfer the properties to the children. However, his intention was brought about by the undue influence of Geoffrey or the unconscionable dealing of Geoffrey.

133. [133]
     I accept there has been some delay in the case. However, I do not accept the defendants have suffered any prejudice by reason of the delay. The actions of the deceased’s children took away from the deceased and from his wife the ability to prosecute an action. In early 2003 the deceased and the plaintiff were given the right advice that the taking of any action would be protracted and difficult. Nevertheless I find the plaintiff acted reasonably in seeking out who she could with her limited resources to try and prosecute her claim. I also consider there may have been a reluctance on the part of the deceased to engage in litigation against his children. The plaintiff has not sought any relief with respect to the home units or their value and therefore the defendants are not prejudiced by any alteration of their position.

134. [134]
     I do not accept the deceased’s children have adopted any assumption about the legal position between themselves and the deceased or the plaintiff. I find that it was the deceased’s children through the deceased’s son Geoffrey who unduly influenced the deceased. Therefore the deceased’s children knew at all times the advantage they had obtained by their actions in having the properties transferred to them exposing the deceased to the danger of not having a home to live in until he died and for his wife to live in until she died or they needed to move to a nursing home. They would not have had the means to move to a nursing home with the transfer that took place. Therefore I do not accept that the plaintiff is estopped in pursuing the relief she seeks in these proceedings.

135. [135]
     Therefore:-

1. I declare that the defendants hold the property located at 18 Atkinson Street Mackay on trust for the estate of the late Bruce George Gillespie. 

2. I order that the transfer of the property more particularly described as Lot 11 on RP 715161 Title Reference 20566214 from Bruce George Gillespie to the defendants on 17 December 2002 be set aside.

3. I order that the property more particularly described as Lot 11 on RP 715161 Title Reference 20566214 be transferred from the defendants to Gloria Dawn Gillespie as Administrator of the Estate of Bruce George Gillespie (deceased).

136. [136]
     I dismiss the counterclaim of the first defendant and second defendant.

137. [137]
     I will hear the parties as to the question of costs.