Anderson v Anderson[2013] QSC 8

SUPREME COURT OF QUEENSLAND

[1] The plaintiff and defendant are the only children of Roma and Ian Anderson.  Ian Anderson died on 12 December 2007.  His share of their main asset, the family home, passed by survivorship to Roma Anderson, who died on 29 December 2009 at the age of 81 years.  Mrs Roma Anderson made a will on 22 November 2007, shortly before her husband’s death.  She appointed the plaintiff, John Anderson, and (in the event of his death) his wife Deborah, executors and left her property equally between her sons.  On the same date, 22 November 2007, she executed an enduring power of attorney for both health and financial matters, to commence upon her incapacity, naming John and Deborah Anderson as attorneys.

[2] This litigation arises because on 26 September 2008 Mrs Anderson executed another will drawn by a different solicitor.  This will made both her sons executors and named both her sons as beneficiaries.  On the same date she executed a Form 1 transfer under the Land Titles Act 1994 in favour of the defendant Malcolm Anderson.  The transfer was of her home, her major asset.  The consideration was expressed to be natural love and affection.  That is, the transfer was by way of gift.  Mrs Roma Anderson’s signature is witnessed by her new solicitor, a Mr Gregory Michael Hely.  Apparently Malcolm Anderson did not sign the form as transferee that day.  His signature is shown on the form dated 31 October 2008 and again Mr Hely is shown as witness.  The relief claimed in this proceeding is a declaration that this transfer is void or alternatively voidable.  Issues of Mrs Roma Anderson’s capacity and Mr Malcolm Anderson’s undue influence over her are relied upon.

First Will and Initial Concerns as to Capacity

[3] Ms Carla Parsons, the solicitor who took instructions and drew the will dated 22 November 2007 gave evidence.  She impressed as a competent lawyer.  She had no doubts about Mrs Roma Anderson’s capacity at the time she made the 22 November 2007 will.  However, doubts were raised in her mind when Mrs Roma Anderson contacted her twice in early December 2007.  First Ms Parsons received a phone call on 4 December 2007 in which Mrs Roma Anderson seemed to have forgotten entirely that Ms Parsons had been instructed to send a copy of her will to her son, when she had given those instructions to Ms Parsons quite clearly at the time of making the will.  Then, soon after, she received a second phone call in which Mrs Roma Anderson said that she wanted to change the will she had recently made to remove Deborah Anderson from it.  Mrs Roma Anderson made an appointment to come in to discuss the matter, but cancelled the appointment. 

[4] As a consequence of doubts raised by these matters Ms Parsons wrote to John and Deborah Anderson on 20 February 2008 saying:

“We confirm the writer’s previous advice that whilst Roma appeared to have capacity at the date she provided instructions and subsequently signed her Will, various events following the signing have raised doubts in the writer’s mind as to Roma’s capacity and accordingly, the validity of the Will signed by her.  We confirm your advice that you also feel that Roma may have lost capacity since the time she signed her will in November, 2007, brought on by the passing of her husband.

Accordingly, we reconfirm our previous advice to you that you should liaise with Roma’s General Practitioner, Dr Davies [sic], to obtain his [sic] opinion in writing as to whether he believed Roma would have had capacity to make and execute a Will on or about 22 November, 2007.  This letter would then be placed with the Will to confirm the validity or otherwise.”

[5] This suggestion led to the writing of the first of what were ultimately four written statements by Dr Robyn M Davis, who normally acted as Mrs Roma Anderson’s general practitioner.[1]  This statement was placed with the will dated 22 November 2007.

[6] On 18 September 2008 Mrs Roma Anderson called at the office where Ms Parsons worked to collect her will.  From what the receptionist told Ms Parsons that day, Ms Parsons had concerns that Mrs Anderson may have lost capacity such that the enduring power of attorney dated 22 November 2007 had been activated.  She therefore contacted Mr John Anderson.  There was nothing which Ms Parsons herself observed that day which bears on capacity.  Her actions were in response to information received from the receptionist.  Unfortunately the receptionist was unable to recall a great deal about what she observed that day.  The receptionist said that she recalled Mrs Roma Anderson and a man, who she assumed was Malcolm Anderson, coming into the office to collect the will.  She recalled that Mrs Anderson signed the receipt for the will slowly, “I remember she was quite elderly, quite disoriented.”

[7] Later that same day, Ms Parsons received a telephone call from Mr Malcolm Anderson asking for an explanation as to why Mr John Anderson had been told that Mrs Anderson had collected her will.  He said his mother was unhappy about this contact.  Ms Parsons explained.  During the telephone conversation she spoke to Mrs Roma Anderson and could hear Mr Malcolm Anderson in the background prompting his mother.  She could hear him saying words to the effect of, “tell her you wanted the will” and to tell Ms Parsons that she (Mrs Roma Anderson) was not happy with Ms Parsons.  Mrs Roma Anderson did not say anything in response to this latter suggestion.  There was, in Ms Parsons’ words, “an extended silence”.  Of this telephone call Ms Parsons said, “… there seemed to be a lot of confusion.  I took from it that Roma or the deceased didn’t know that she was – what she was speaking to me about or why she was speaking to me and I had a concern that, perhaps, her best interests weren’t being – being considered at that point and …” Ms Parsons said that Mrs Roma Anderson, “… wasn’t able to tell me why she was speaking to me, why she was on the phone.  Even with the prompting she still wasn’t responding to that other than to say, ‘I wanted my will.’”

Second Will and Execution of Transfer

[8] Mrs Roma Anderson first saw Mr Hely on 19 September 2008.  Unlike Ms Parsons, Mr Hely saw Mrs Anderson, and took instructions for the preparation of her will, in the presence of her son Malcolm Anderson.  Mr Hely swore that “A lot of the instructions on her behalf came from Malcolm”.  Although, he said that Mrs Anderson affirmed the instructions by nodding or saying something in agreement.  It was Malcolm Anderson who told Mr Hely that his mother wanted to leave her house to him – t1 1-41.  Mr Hely tried to discuss the reasons for this with Mrs Anderson and the fact that to do so would favour one of her sons over the other, but Mrs Anderson would not discuss the matter, she simply persisted in repeating, “I just want Malcolm to have the house”.  Other than this, he was not able to evoke very much reaction from her at all.  This discussion, so far as it can be properly called a discussion, took place in the presence of Malcolm Anderson.

[9] It was Malcolm Anderson who suggested that he be given the house as an inter vivos gift.  Mr Hely says he advised Mrs Anderson that that would be favouring one son over the other, but he cannot recall that she reacted to that advice.  Mr Hely also advised that any such transfer might be challenged by John Anderson on the basis of lack of capacity or undue influence.  He says he gave the same advice in relation to any new will Mrs Anderson might make.  Again, all of what was said was in the presence of Malcolm Anderson.  Malcolm Anderson then instructed Mr Hely to prepare a transfer of the house, and Mrs Anderson affirmed that either by nodding or saying ‘yes’.

[10] Only once in the course of his dealings with Mrs Anderson did Mr Hely meet with her alone.  Mr Hely did not have any specific recollection of this meeting.  Although, he did recall that Mrs Anderson did not say very much.

[11] Mr Hely recommended that Mrs Anderson be taken to see a geriatrician “for a certificate advising on Mrs Anderson’s capacity”.[2]  He said he did this because he had “some doubts as to her capacity”.  Mr Hely made some enquiries of Mrs Anderson with a view to assessing her capacity himself.  He asked her who the Prime Minister was.  She did not know.  He asked her who the previous Prime Minister was, and she thought it might have been Robert Menzies.  He asked her the names of her children and her phone number and address.  She knew the names of her children, did not know her phone number, and he was unable to recall whether she remembered her address.  Mr Hely doubted “her ability to reason and to think at that time”, that is at the time he took instructions for the transfer – t1-49.  Mr Hely said, “I wasn’t certain that Mrs Anderson could make a rational decision in relation to the transfer of the house and that she could understand the effect that it would have on her other son.” – t1-52.

[12] Mr Hely prepared a will and witnessed it.  He prepared the Form 1 transfer and witnessed the signature of both Mrs Anderson and (later) Malcolm Anderson on it.  He prepared an enduring power of attorney but did not witness that because he believed that he could not do so unless he was satisfied of the capacity of the donor of the power of attorney.  He was not satisfied that Mrs Roma Anderson had capacity.  He simply handed over the unsigned document he had prepared.  All this took place on 26 September 2008.

Mr Hely’s Evidence

[13] Mr Hely’s conduct in seeing Mrs Anderson in the company of her son, and taking instructions from Malcolm on her behalf are described above.  By November 2008 Mr Hely wrote to solicitors acting for the plaintiff saying that he acted on behalf of Roma Anderson and Malcolm Anderson.  By this stage he had acted for Malcolm Anderson in lodging a caveat and was holding the stamped transfer in safe custody for Malcolm.  He had put himself in an invidious professional position, and I am of the view that this affected the evidence he gave.

[14] In cross-examination Mr Hely was asked various questions about whether he advised Mrs Anderson and whether he made Mrs Anderson aware of different matters – eg., see t1-63.  He answered yes.  It is clear however from his evidence‑in‑chief that, while he may have given advice to Mrs Anderson about matters, he was not able to gauge from her response whether she understood the advice or not.  To the extent that a literal reading of some questions and answers in cross-examination suggest some different position, I reject it – cf t1-67 l 30 and t1‑69 l 25. 

[15] In the course of Mr Hely’s dealing with Mrs Anderson he sent her a costs agreement and a disclosure notice, both relatively complicated documents.  In cross‑examination I thought he was evasive (eg., tt1-55-56 and tt1-69-70) and I thought deliberately gave evidence exaggerating his opinion of Mrs Anderson’s capacity to justify his conduct in sending her complicated documents when really he had no basis to think she could understand them at all – cf t1-55 l 15.  This comment applies to later correspondence seeking instructions, and advising Mrs Anderson, and his taking instructions from her when a dispute between John and Malcolm developed as to provision of the certificate of title to the family home and his obtaining her consent to a caveat which Mr Hely lodged on Malcolm Anderson’s behalf. 

[16] At the first meeting between Mr Hely, Mrs Roma Anderson and Mr Malcolm Anderson on 19 September 2008, Mr Hely was provided with either the first or second written note from Dr Davis, he cannot now be sure which it was, though he was inclined to think it was the second – t1-53.  Then on the second occasion he saw them, 26 September 2008, he was provided with the third of Dr Davis’ notes – t1-54.  I thought Mr Hely’s evidence relating to the effect of Dr Davis’ notes on his mind was deliberately obscure and prevaricating.  I think concern for his own interests in the circumstances in which he had acted influenced the way he gave evidence and the substance of the evidence he gave.  While he said he relied on Dr Davis’ letter of 26 September 2008 to some extent, it was not enough to convince him to proceed to witness the enduring power of attorney because he was unwilling to certify that Mrs Anderson understood the nature and effect of the document. 

Dr Davis’ Evidence

[17] Dr Davis’ evidence was remarkable for the lack of assistance it provided in determining whether Mrs Roma Anderson had capacity at the time of the impugned transfer.

[18] The first of Dr Davis’ written notes is:

“I hereby certify that on 27/02/2008 I examined Mrs Roma Anderson.

Roma appears to be clear in her thinking and can relate to me the conditions of her will, verified by her accompanying son and daughter-in-law.  She does not appear to have deteriorated cognitively since November 2007.  Her previous consultation with me was on 19 November 2007.”

[19] The second note given by Dr Davis is in terms:

“I hereby certify that on 31/03/2008 I examined Mrs Roma Anderson.

Roma is of sound mind and capable of signing legal documents independently.”

[20] The third written opinion given by Dr Davis is dated 23 September 2008 and says:

“I hereby certify that Mrs Roma Anderson has been a patient under my care since April 2005.  In that time Mrs Anderson has remained well and has undergone health assessment for age in July this year.  Mrs Anderson appears to be fully oriented and aware of her presenting issues.  She has normally been accompanied by her son Malcolm and therefore I have come to know Malcolm as well.

In consultation Mrs Anderson appears to act of her own free will and expresses her own wishes without coercion or influence from her family.

She is currently living independently with self care and meal preparation, requiring assistance only with transport and shopping.

I believe Mrs Anderson is currently able to sign documentation of her own free will.”

[21] The last of Dr Davis’ pronouncements is dated 30 September 2008 in terms:

“I hereby certify that Mrs Roma Anderson is a patient of my practice.  Roma has been accompanied by her son John today.  John has requested a letter for his solicitor … stating that Mrs Anderson is not capable of making informed decisions.

Roma has been tested with a screening dementia test in July 2008 and on this test demonstrated deficiency in memory.  Roma is confused as to the reason she is here today.  However, I cannot state that Roma is incapable of being involved in decisions regarding the dispossession [sic] of her property.  Roma does not appear to be under any coercion from her sons in my presence.

I would suggest that a meeting with both sons and Roma being present would be required to assess truly Roma’s wishes with regard to management of her affairs.”

[22] Dr Davis’ note of 30 September 2008 refers to Mrs Anderson being tested.  This came about because her practice invited all its patients over 75 to attend to have a mini-mental state examination.    The test was administered on 24 July 2008, not by Dr Davis, but by a nurse.  The nurse did not give evidence.  Mrs Anderson scored 17 out of 30, which result would be classified as showing a moderate degree of dementia – t1-78.  Dr Davis thought the test was “poorly reliable”.  She said it is a screening test, not a diagnostic test.  I do not know that I can accord it much weight.  It is consistent with evidence from witnesses who say that Mrs Roma Anderson was confused from January 2008 onwards, but I do not think it proves anything much by itself.

[23] On 24 July 2008, after the result of the mini-mental state examination came to her notice, Dr Davis spoke to Mrs Anderson in the presence of Malcolm Anderson to see how she was managing at home and whether or not she needed some extra assistance.  She was satisfied that with Malcolm Anderson’s help Mrs Anderson was managing without the need for outside help.  Dr Davis did not make any assessment useful to determining the present matter that day – t1-79.  She had noted “memory loss of early dementia” on 19 November 2007.  She thought by March 2008 Mrs Anderson was “clinically” confused, and by September 2008 more confused than in November 2007, but offered precious little basis for, or explanation of, these conclusions. 

[24] Dr Davis recalled very little of her patient and very little outside what was recorded in her written notes.  She did not know what the relevant legal tests for capacity were, and as the language of her written notes show, did not direct her mind to the matters which are important to the resolution of this case.  Further, she has so little recollection of her erstwhile patient that she could not give any helpful evidence as to present matters from her general interactions with her patient over time. 

[25] Like Mr Hely, Dr Davis agreed with leading questions in cross-examination.  For example, as to her second, very brief written note of 31 March 2008: 

“And you were satisfied at that time, as per your letter, that she was of sound mind and capable of understanding and signing the legal documents independently in respect of that transfer?--  Correct.”

[26] Further as to that brief note she said:

“My meaning of soundness of mind was that Mrs Anderson didn’t suffer any intellectual impairment; she didn't suffer any psychiatric illness; she wasn’t under the influence of any drug, alcohol or other substance.  And to me, that indicated – or she didn’t suffer severe dementia on my clinical judgment at that time.  And to me that constituted a soundness of mind for signing documents.  I believe that she did have an understanding of her actions and the outcome of her actions at that time.”

[27] However, despite the words of her note, she made no formal examination and could not say what she informally asked, or did not ask, to form her conclusion.  There is no evidence at all that she knew what documents were being discussed; how complex the language or concepts embodied in them were, or that she ever tried to discuss matters of this type with her patient.  While she said that she believed Mrs Anderson had an understanding of her actions and the outcome of her actions, there is no evidence that she investigated what actions were under consideration, or Mrs Anderson’s understanding of them.  When pressed, she prevaricated and raised semantic points as to the meaning of “capacity” – t1-92-3.  Her evidence in this regard was unimpressive, and overall I found it difficult to conclude that she had any real recollection of Mrs Roma Anderson at all.

[28] Insofar as Dr Davis did turn her mind to more relevant matters, so far as the law is concerned, that occurred late in relation to the last of her notes and there she simply concluded that she was unable to come to any helpful opinion. 

John and Deborah Anderson

[29] Mrs Roma Anderson was very frail during the end of 2007 and all through 2008.  She suffered from non-Hodgkin’s lymphoma and weighed only 36 kilograms.  It was an effort for her to stand up – t1-100.  She rarely left the house.  She could not go out of the house except if she were accompanied by someone.  She used a walking‑stick.  While John and Deborah Anderson tried their best to see Mrs Anderson regularly, her day-to-day care, and by far the most of her human contact after her husband Ian’s death in December 2007, was with Malcolm Anderson.  He lived in the family home with her.  In fact, except for some short periods of time, he had never left his boyhood home, notwithstanding he was a man of mature years at the time of all the events relevant to this matter.

[30] Both John Anderson and his wife Deborah gave evidence.  Neither was cross‑examined.  The impression I formed was that they were both honest, if somewhat inarticulate, witnesses.  I thought that John Anderson found giving evidence an emotional experience and that this contributed to his having difficulty expressing himself.  I accept the evidence that they gave, the relevant parts of which are as follows.

[31] Mr John Anderson said that after his father passed away on 12 December 2007 his mother: “… just went into herself and deteriorated, physically and mentally” – t2‑32.  He said she, “just became a little old – old lady really.”

[32] The relationship between John and Malcolm Anderson was never good, but Mr Ian Anderson left personal property to Mr John Anderson and not Mr Malcolm Anderson.  This caused some further deterioration in the relationship between the two brothers.  After his father’s death, John Anderson said he telephoned his mother every day but visited once a week – t2-33.  

[33] Mrs Deborah Anderson said that she visited Mrs Roma Anderson almost daily until about January 2008 – t2-10.  After that she and her husband visited Mrs Roma Anderson on Friday nights when Malcolm Anderson was not at home.  This reduction in contact was due to difficulties between the two brothers and the desire of John and Deborah Anderson not to come into contact, and potentially conflict, with Malcolm Anderson – t2-33, t2-39.  Nonetheless, Mrs Deborah Anderson’s evidence was that even after January 2008, John Anderson would ring Mrs Roma Anderson on a daily basis – t2-26.

[34] Mrs Deborah Anderson did not know of any other friends or family who visited Mrs Roma Anderson through 2008 – t2-28 – although she allowed for the possibility that a next door neighbour might have popped in. 

[35] The plaintiff said that when he or his wife telephoned Mrs Roma Anderson, Malcolm Anderson would make noise so as to interfere with the telephone call.  Deborah Anderson gave evidence that Roma Anderson spoke very softly and that noise made it very difficult to hear Mrs Roma Anderson on the phone.  She said, “It was almost like a kitchen noise, like cutlery or lids of pots or something banging together.  It was very hard to distinguish what is was, but it was always quite noisy.” – t2-27.  

[36] Mr John Anderson said that when he spoke to his mother on the telephone in the period after his father’s death, there would be “banging of pots and pans, plates.  Just making it very, very hard to hear mother in the conversation”.  He said this was virtually every time he telephoned and as well, he said he could hear his brother saying things such as, “Get him off the phone, Mum.  Dinner is ready.” – t2-44.

[37] In the period after Mr Ian Anderson’s death, it was John Anderson who looked after Mrs Roma Anderson’s financial needs: banking needs, Medicare, payment of bills, and making sure that his mother had money in her purse – tt2-32-33.  He would draw money out of her key card account for her and put it in her purse. 

[38] In the last week of March or early April 2008, Mr John Anderson stopped attending to his mother’s financial affairs – t2-34.  He said he did so because he received repeated telephone calls at work from his mother asking where her bank cards were and complaining that she did not have any money.  He would explain to her that he had the bank cards and that he had given her money.  He said that he could hear his brother, Malcolm, saying in the background on the telephone, “You’ve got the cards.  You’re a thief.  You’re taking money.” – t2-36.  He said that he could hear these background comments on “over half to 75%” of the telephone calls.  He said that sometimes his brother’s voice in the background would be saying “Get the cards.  Need the cards.  Want the cards.” – t2-37-38.  He said that he would then hear his mother repeat those things and he would reassure her that he had the cards and she had money in her purse.  He said that within a matter of 10 minutes to an hour he would go through the same phone call again and that it got to a point where this was happening six or eight times a day.  On each telephone call there would be the same request and the same explanation offered by Mr John Anderson.  He said this would happen every day he was at work – that is five days a week – t2-38. 

[39] This behaviour so upset Mr John Anderson that he delivered to his mother all the bank cards, cheque books and other financial documents he had which belonged to her, and no longer assisted with her financial affairs. 

[40] After this time – April 2008 – he noticed that his mother became more feeble.  He said he assumed his brother must have performed tasks such as cooking and washing because he did not think his mother was capable of that. 

[41] Both Mr John Anderson and Mrs Deborah Anderson said that they only had very limited conversation with Mrs Roma Anderson during 2008, in the sense that they would enquire what she had been doing and she would make rather bland answers such as watching the television or looking out the window, but no substantial conversation took place.  By September 2008 Mr John Anderson described his mother as, “very, very vague and confused” – t2-40.  He said that she would not know what she had eaten for dinner and would not know what time she went to bed or got up in the morning – t2-41.  Mr John Anderson took his mother to see Dr Davis and concluded from what Dr Davis said that his mother had been to see Dr Davis the week before, but Mrs Anderson gave no sign of remembering this – t2‑42. 

Capacity

[42] The case of Gibbons v Wright[3] is authority for the propositions that a contract, or conveyance for value, executed by a person who does not understand, in substance, what the contract or conveyance brings about, is not void, but is voidable if the other party to the contract or conveyance knew, or ought to have known, of this lack of understanding, and did not act in good faith.  That case concerned transfers and mortgages by three sisters who held property jointly.  The purpose of their entry into the transfers and mortgages was to sever the joint tenancy between them.  The level of understanding necessary was that the sisters understood not just that the documents were mortgages or transfers, but that their effect would be to alter the capacity in which they held their real property so that their separate interests passed under their wills, rather than to the survivors or survivor on death – p 439.  That is, it was necessary that the sisters understood in substance what the documents brought about. 

[43] Gibbons v Wright says nothing as to whether or not it is necessary for a person seeking to avoid a gift made by a donor without capacity to prove that the donee knew, or reasonably ought to have known, that the donor lacked capacity.  In Crago v McIntyre[4] Holland J thought that it was not, relying on the old authority of Elliot v Ince.[5]However, there is some Western Australian authority to the contrary: Collins v May[6] and Stone v Registrar of Titles.[7]

[44] The transfer which the plaintiff here impugns was voluntary.  The plaintiff did not plead that the defendant knew or ought to have known that Mrs Anderson lacked capacity at the time it was made.  Notwithstanding that I mentioned the matter during the course of the hearing, no leave was sought to amend the pleading in this respect, and no submissions were made directed to whether or not the plaintiff was required by law to show this.  The matter seems simply to have been ignored by counsel for the plaintiff.

[45] The defence case as to capacity was that there was not enough evidence to allow me to conclude that Mrs Roma Anderson lacked relevant capacity at the time of the transfer.  No evidence was called on behalf of the defendant and the defence case relied upon the onus of proof being on the plaintiff.

[46] In December 2007 Ms Parsons formed the view that Mrs Roma Anderson had entirely forgotten her instructions to Ms Parsons as to where to send a copy of her will.  She was also concerned that in December 2007 she wished to change the will, so recently after having made it.  The evidence of Mr John Anderson as to his mother’s repeatedly telephoning him at work to make enquiries and accusations about his handling of her financial affairs in March and April 2008 is consistent only, in my view, with Mrs Roma Anderson suffering some aberration of mind.  That she could telephone several times on the same day in quick succession, and repeat this behaviour day after day, may indicate that her short term memory was significantly affected, at least at the times she made these telephone calls.  However, there is no evidence to suggest that, in general, Mrs Roma Anderson’s memory was this bad; that is, that if there was any severe impairment to her memory it persisted for more than a short time.  And there is no evidence that at the time she made the transfer this severe impairment to her memory was operating.  That Mr Malcolm Anderson could be heard in the background of these calls prompting his mother suggests that her behaviour may not have been entirely the product of a severe lack of memory, but the combined product of some mental deterioration (the extent of which it is difficult to accurately gauge) and Malcolm Anderson’s behaviour.

[47] Mrs Anderson signed the transfer on 26 September 2008.  The receptionist who worked for Ms Parsons described Mrs Anderson as “quite disoriented” on 18 September 2008, but the nature of their contact was transitory and the receptionist had a poor memory.  The telephone conversation with Ms Parsons that afternoon is more useful evidence.  Ms Parsons thought that Roma Anderson did not understand why she was speaking to Ms Parsons and that she could not respond in any meaningful way to the conversation Ms Parsons was making.  Again, this is consistent with a significant lack of capacity.  On the other hand, Ms Parsons could hear Mr Malcolm Anderson prompting his mother in the background.  Once again I cannot conclude that the confusion and lack of response from Mrs Roma Anderson was due to a lack of capacity.  It might be, like the telephone calls in March and April to John Anderson, that the behaviour of Mrs Roma Anderson on the telephone was a combined product of some mental frailty (extent unknown) in the presence of Malcolm Anderson prompting and influencing her as to what to say.  In particular, the fact that Mrs Roma Anderson did not respond to the prompting to tell Ms Parsons that she was not happy with Ms Parsons’ actions is consistent with Mrs Roma Anderson being embarrassed to convey that message because it did not reflect her true thoughts and simply being silent in the face of prompting to this effect from Malcolm Anderson.

[48] The lack of response from Mrs Anderson to Mr Hely’s attempts to instigate a wider conversation with her about the reasons for her wanting to leave the house to Malcolm and the difficulties this might cause because of unequal treatment of her two sons all took place in the presence of Malcolm Anderson.  Like the telephone calls in March and April to John Anderson, and the telephone call to Ms Parsons on 18 September 2008, it might well be a combined product of some mental frailty and Mrs Roma Anderson being pressured, prompted and influenced by Mr Malcolm Anderson. 

[49] Mrs Anderson’s response to questions asked by Mr Hely as to who was the Prime Minister and what was her phone number, certainly tends to indicate that she was suffering from some impairment to her capacity by 19 September 2008.  Mr Hely was not satisfied that Mrs Roma Anderson did have capacity at that time, but nor could he draw the conclusion that she did not.

[50] As discussed above, Dr Davis’ evidence was remarkably unhelpful in determining what capacity Mrs Roma Anderson had in September 2008, even though she assessed her on both 23 September 2008 and 30 September 2008.  It is remarkable to me that the third written opinion given by Dr Davis, dated 23 September 2008, does not mention the dementia screening test administered in July 2008.  It is also remarkable to me that by September 2008, when Dr Davis must surely have understood her opinion was being sought on more than a casual enquiry, no formal examination was carried out by her, and if there were any informal examination, she did not make any note of it.  In all the written opinions given by Dr Davis she fails to direct her mind to issues which are crucial in terms of the legal test for capacity.  In that respect I note that the opinion of 23 September 2008 refers to medical issues when it uses the term “her presenting issues”.

[51] Dr Davis’ opinion was that the mini-mental state examination administered in July 2008 was of little value in assessing capacity and while she gave evidence that Mrs Anderson was clinically confused in May 2008 and increasingly confused by September 2008, she offered very little basis for these opinions.  Generally I thought her recall of her patient was so poor, and the nature of the enquiries she undertook between February 2008 and September 2008 so unfocussed that I am not prepared to rely upon her evidence as indicating any more than that between these dates Mrs Roma Anderson was showing some signs of memory loss and confusion which Dr Davis thought might be the product of vascular dementia, and which was increasing.

[52] Having regard to all the evidence as to capacity, I am suspicious that by September 2008 Mrs Anderson had lost capacity in the relevant sense.  However, I accede to the defendant’s submission that the evidence called by the plaintiff has failed to prove, even on a balance of probabilities test, that at the time of signing the transfer Mrs Roma Anderson had lost capacity in the sense required by Gibbons v Wright.  In those circumstances it is not necessary for me to determine whether or not Mr Malcolm Anderson knew or ought to have known that.

[53] For the same reasons as expressed in relation to capacity, I am not persuaded that the plaintiff has discharged the onus of proof insofar as he places his case on the basis of non est factum.

Undue Influence

[54] In Johnson v Buttress[8] Chief Justice Latham said:

“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.  Where certain special relations exist undue influence is presumed in the case of such gifts.  These relations include those of parent and child, guardian and ward, trustee and cestui que trust, solicitor and client, physician and patient and cases of religious influence.  The relations mentioned, however, do not constitute an exhaustive list of the cases in which undue influence will be presumed from personal relations.  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.

Where such a relation of what may be called, from one point of view, dominion, and from another point of view, dependence, exists, the age and condition of the donor are irrelevant so far as raising the presumption of undue influence is concerned.  It must be affirmatively shown by the donee that the gift was … ‘the pure, voluntary, well-understood act of the mind’ of the donor.” (Citations omitted) – p 119.

[55] The relationship between Mrs Roma Anderson and Mr Malcolm Anderson does not fall within one of the special categories where undue influence is presumed to exist.  While that list includes the relation between parent and child, it is only presumed where the child has made a gift to the parent, not where a parent has made a gift to a child.  However, I conclude that the plaintiff has established that the relationship between Mr Malcolm Anderson and Mrs Roma Anderson was such that Mr Malcolm Anderson was relevantly in a position of dominance over Mrs Roma Anderson such as to the raise the presumption of undue influence – see the second half of the first paragraph extracted above.  As Dixon J put it in that same case, I conclude that by September 2008 Mr Malcolm Anderson and Mrs Roma Anderson were in “an antecedent relation of influence” – p 138.  My reasons are as follows. 

[56] By September 2008 Mrs Roma Anderson was 80 years old.  She was a frail lady weighing only 36 kilograms.  She was sick by reason of her suffering from non‑Hodgkin’s lymphoma.  She had lost her husband less than a year before.  She could not walk without a stick; she could not leave her house without assistance.  She had no relatives other than her two sons close by and, perhaps with the exception of an occasional visit from a neighbour, saw only her two sons and Deborah Anderson.  Her contact was very much more with Malcolm Anderson than with John.

[57] The evidence was that non-Hodgkin’s lymphoma, and Mrs Roma Anderson’s consequent frailty and weakness, would not affect her mental functioning.  However, her physical condition is relevant to the overall picture.  She was a frail old lady who was sick, very isolated and dependent for her day-to-day care upon her son Malcolm Anderson.  Malcolm Anderson lived in the family home with her, and indeed the evidence was that he had never really left the family home but remained in it since boyhood.  Because of the conflict between Malcolm Anderson and his brother John, Mrs Roma Anderson’s contact with John and Deborah Anderson declined in 2008, she saw them only once a week, on Friday evenings, although she received telephone calls from them daily.

[58] As well, Mrs Roma Anderson was experiencing some symptoms of memory loss and dementia by 2008.  Dr Davis gave evidence that from May 2008 she was clinically confused and that memory loss and confusion seems to have been evident to Ms Parsons from December 2007.  By September 2008 Mr John Anderson says that his mother was very, very vague and confused. 

[59] The fact that Mrs Roma Anderson changed her testamentary intentions, between November and December 2007, and again, apparently, in September 2008 is an indication that she was subject to some instability and fragility in her thinking.  In Johnson v Buttress Latham CJ said of changes of testamentary intention of the deceased in that case:

“No adequate reason … is suggested for these variations of testamentary intention, and the testamentary enterprises of the testator certainly support the view that he was definitely unstable in intention and that he was at least liable to change his views without obvious reason when he was contemplating the disposition of his property.” – p 121.

[60] Having found an antecedent relationship of influence between Mrs Roma Anderson and Mr Malcolm Anderson, I am not persuaded by the defendant that the execution of the transfer was the result of a free and voluntary exercise of Mrs Roma Anderson’s independent will.  In fact, all the indications are to the contrary.

[61] The transaction which is impugned by the plaintiff is a very significant transaction.  The family home was by far the most significant asset which Mrs Roma Anderson owned.  By the transfer she gave it away.  There was no protection for her – she retained no right to reside in what had been her home for most of her life.  As well, while a will, executed on the same day as the transfer, left her estate to both her sons equally, the practical effect of that was rendered almost nugatory by the transfer of the family home to Malcolm.  The advantage to Malcolm need not be elaborated on.  In Johnson v Buttress Latham CJ said:

“In the case of an illiterate or weak-minded person it will be more difficult for the donee to discharge the prescribed onus of proof than in other cases.  The burden will be still heavier upon the donee where the donor has given him all or practically all of his property.” (Citations omitted) – p 120.

[62] In substance it cannot be said that Mrs Roma Anderson received independent advice as to the transaction which the plaintiff seeks to impugn.[9]  All the consultations with Mr Hely were in the presence of Mr Malcolm Anderson except one.  At that one consultation Mr Hely recalled that Mrs Anderson did not say very much.  Other than this he was very vague as to what might have transpired at it.  Certainly such advice as Mr Hely purported to give Mrs Roma Anderson was given in the presence of Mr Malcolm Anderson.  There were no objective indications that Mrs Roma Anderson understood the advice which was being given to her.  She did not engage in Mr Hely’s attempts to discuss the inequality which the impugned transaction would produce.  She did not attempt to justify or explain herself.  There is no indication that she was given any advice that if she executed a transfer of the family home it might have the immediate effect of making her homeless.  It was Mr Malcolm Anderson who suggested that the house be transferred to him and Mr Malcolm Anderson who gave the instructions for that to happen after Mr Hely attempted to discuss it with Mrs Roma Anderson.  Far from assuaging any concerns about the impugned transaction, the descriptions given by Mr Hely as to his consultations with Mrs Roma Anderson demonstrate in my mind that in fact Mrs Roma Anderson was being dominated by and influenced by Mr Malcolm Anderson and not exercising her own free will and judgment as to the transactions.

[63] The evidence as to Mr Malcolm Anderson’s interfering with his mother’s telephone conversations with John and Deborah Anderson by making noise and encouraging his mother to get off the phone and have her dinner show a disrespect towards, and dominance over, Mrs Roma Anderson.  Such interference could only have the effect of making her more isolated than she already was, and more dependent upon him, solely, for companionship, as well as for the necessities in her life. 

[64] The descriptions of his prompting his mother given by both Ms Parsons as to the telephone call of 18 September 2008, and Mr John Anderson as to the telephone calls in March and April 2008 bespeak strongly actual attempts by Mr Malcolm to dominate and influence his mother.  The evidence is that in December 2007 Mrs Roma Anderson wanted John and Deborah Anderson to be the executors of her will and her attorneys should she lose capacity.  That is, she reposed trust and confidence in her son John Anderson and his wife.  The fact that after her husband’s death it was John Anderson who was in charge of Mrs Roma Anderson’s financial affairs supports this conclusion.  There is no evidence of any objective matter which might have caused Mrs Roma Anderson to have so changed her view by March 2008 that she would need to cross-question him as to his financial dealings on her behalf.  While I have not been satisfied to the requisite standard that her behaviour during these telephone calls proved a lack of capacity affecting the transfer, it does in my view clearly show continued, and quite effective, attempts by Malcolm Anderson to dominate and influence his mother and cause her to behave in a way which is otherwise unaccountable.  The effect of the conduct which Malcolm Anderson brought about in this way was to gain control over his mother’s day‑to‑day finances and to further isolate his mother.

Unconscionable Conduct

[65] This equitable doctrine is related to that of undue influence.  The points of similarity and difference are discussed in Bridgewater v Leahy.[10]The majority in that case cite Deane J in Commercial Bank of Australia Ltd v Amadio[11] to the effect that undue influence looks to, “the quality of the consent or assent of the weaker party”, while unconscionable conduct looks at the attempted enforcement or retention of a benefit produced by a dealing where the other party is under a special disability – p 478.  Further, citing Sir Anthony Mason, writing extra-curially:

“My understanding of undue influence … is that it denotes an ascendancy by the stronger party over the weaker party such that the relevant transaction is not the free, voluntary and independent act of the weaker party.  In other words, it is the actual or presumed impairment of the judgment of the weaker party that is the critical element in the grant of relief on the ground of undue influence.

…

Unconscionable conduct, as the term suggests, focuses more on the unconscientious conduct of the defendant. … In Australia, it has been recognised that unconscionable conduct is a ground of relief which will be available ‘whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis‑à‑vis another and unfair or unconscientious advantage is taken of the opportunity thereby created.”[12]

[66] Blomley v Ryan[13] was such a case.  In Tabtill Pty Ltd v Creswick[14] the Court of Appeal said, “… an unconscientious dealing does not occur because parties are in unequal bargaining positions or even if one is suffering from some infirmity or disability.  The disadvantage needs to be such as to affect seriously the ability of the party seeking to set aside the transaction to make a judgment as to his own best interests and the other party knows or ought to know of the existence of that condition or circumstance and of its effect.”

[67] Because of my conclusions as to undue influence, it is not strictly necessary that I deal with this head of the plaintiff’s claim.  However, the factual matters discussed above convince me that in fact Mr Malcolm Anderson took unconscientious advantage of the ailing and isolated condition of his mother to obtain the transfer which is sought to be impugned in this case.  Mr Malcolm Anderson knew more than anyone how his mother was dependent upon him.  He must have known of his mother’s deteriorating mental abilities, and he knew that she would act at his suggestion without contradiction, as her behaviour during the March/April 2008 telephone calls, and 18 September 2008 telephone call showed.  He took her to see Mr Hely, he gave instructions to Mr Hely in her presence which were very much to his advantage and very much to her disadvantage. 

Section 87 Powers of Attorney Act 1998

[68] Section 87 of the Powers of Attorney Act 1998 (Qld) provides:

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

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

(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.”

[69] As recounted in the factual matters at the beginning of this judgment, on 26 September 2008 Mr Hely gave Mr Malcolm Anderson a form of enduring power of attorney but, because Mr Hely was not convinced that Mrs Roma Anderson had capacity at that date he would not witness the execution of the document.  With other assistance the enduring power of attorney was apparently signed by Roma Anderson and Malcolm Anderson on 10 October 2008.  At page 7 of the document it appoints Malcolm Anderson as attorney for financial and personal/health matters and specifies that the appointment for financial matters was to begin on Roma Anderson’s incapacity.  At page 4 of the document it provided, by way of information, rather than an operative clause, that the attorney’s power to make decisions did not begin in respect of personal/health matters until incapacity.

[70] The plaintiff wished to rely upon the statutory presumption found at s 87 of the Powers of Attorney Act and therefore argued that the time to judge the validity of the impugned transfer was 31 October 2008, the date shown on it as the date when Malcolm Anderson signed it.  I think this proposition is wrong in law.  Equity will regard a gift as perfected when the donor does everything necessary for the donor to do to make the gift.[15]  In the case of registered land this will include making available to the donee the certificate of title.[16]  Here there was a certificate of title issued and it was in the lawful custody of the plaintiff, John Anderson.  On 22 September 2008 Mr Hely wrote to Mr John Anderson asking him to produce the certificate of title, saying that Mrs Roma Anderson had instructed this to occur.  Mr Hely was vague in his evidence about whether or not Mrs Anderson’s instructions were in fact to this effect: he said he assumed they were from the terms of his letters.  On the evidence before me then, these instructions were given by Mrs Anderson and, consistently with my findings above, there is not sufficient evidence before me to say she had no capacity to give them.  Thus, the gift was perfected on 26 September 2008.  At that point in time Mrs Anderson had done all she needed to do to effect a transfer.  In my view the question of whether s 87 of the Powers of Attorney Act applies or not does not arise. 

[71] Instructions given by Mrs Anderson to Mr Hely to obtain the certificate of title in order to transfer the land to Malcolm Anderson, although they were not the focus of a great deal of attention at trial, must be regarded as part of her instructions to make an inter vivos transfer and be just as much affected by Malcolm Anderson’s undue influence as her signing of the transfer form itself.

Relief

[72] I make the following orders and declarations:

1.I declare that the transfer executed by Roma Margaret Anderson and dated 26 September 2008 was not her voluntary act but was executed because of the undue influence of the defendant Malcolm Stewart Anderson.

2.I set aside the transfer executed by Roma Margaret Anderson and dated 26 September 2008.

3.I declare that at all times until her death on 29 December 2009, Roma Margaret Anderson was the sole legal and beneficial owner of the land described as Lot 339 on RP138740, County of Ward, Parish of Nerang, Title Reference 15199199.

4.I order that caveat number 712056712 be removed from the land described as Lot 339 on RP138740, County of Ward, Parish of Nerang, Title Reference 15199199.

[73] I will hear the parties as to costs.