Wylie v Wylie[2021] QSC 210

SUPREME COURT OF QUEENSLAND

These proceedings

1. [1]
   Albert Wylie died on 5 June 2018 aged 82.  In the years prior to his death, he had experienced a number of health issues including metastatic bowel cancer, emphysema, and chronic kidney disease.  His daughter Wendy had become his registered carer.  In late 2017, when his condition worsened, he indicated he did not wish for any further aggressive treatment for cancer.  His life expectancy was understood to be a matter of months.  Another daughter Yvette, then moved into his home to assist him around September 2017.  At that time, he had modest assets including a home valued at around $350,000, some chattels including old motor cars and machinery as well as an estimated $150,000 in bank accounts.
2. [2]
   At the time of his death in June 2018 the deceased had a total of $75,721.17 in his CBA accounts including a CBA Term Deposit of $44,559.26 and another account in the amount of $31, 161.91.^[1]  Probate has been granted so the Court proceeds on the basis that the will is valid.
3. [3]
   Three months before his death and six months after she came to live with him, the deceased appointed Yvette as his attorney pursuant to an Enduring Power of Attorney (EPA) dated 28 March 2018.  On 3 May 2018, one month before his death, he gave Yvette a half interest as joint tenant in his real property for “natural love and affection”.  This meant that his major asset did not form part of his estate.  On 8 May 2018, some five days later, he made a new will which appointed Yvette as executor.  After making some small pecuniary legacies to a friend and his surviving children, Wendy and Steven, he left the bulk of his estate to Yvette.
4. [4]
   On 8 October 2018, Wendy and Steven filed a Claim and Statement of Claim, which was subsequently amended, seeking a declaration that the agreement to transfer, and the transfer of the half interest in the real property to the defendant (Yvette), signed on 3 May 2018 are void as a result of undue influence.  They rely on s 87 of the Powers of Attorney Act 1998 (Qld) to set aside the transaction.  Further, or in the alternative, the plaintiffs claim the transfer occurred as a consequence of the unconscionable conduct of the defendant. 
5. [5]
   On 8 October 2018, the plaintiffs also filed an originating application in the District Court for further and better provision from his estate pursuant to s 41 of the Succession Act 1981 (Qld).  The plaintiffs were granted leave pursuant to s 49(2) of the Succession Act 1981 (Qld) to bring these proceedings on behalf of the estate.  Orders were then made for the proceedings to be transferred to this Court to be heard together with the Claim and Statement of Claim. 
6. [6]
   The trial in this matter occurred over three days in February 2021 with several witnesses being called to give evidence.  Extensive and helpful written submissions were provided by Counsel for the plaintiffs in February and March 2021.  The provision of written submission by Counsel for the defendants was the subject of extraordinary delay and final submissions were not provided until 29 June 2021 despite numerous requests.  When finally provided, they were brief and were provided without any explanation for the extraordinary delay.

Background

7. [7]
   At the time of his death, the deceased had three surviving children – Wendy Wylie, the first plaintiff who is currently 62 years of age, Steven Wylie, the second plaintiff who is 60 years of age, and Yvette Wylie, the defendant who is 56 years of age.  Another son, Robert, died at the age of 60 in July 2018 shortly after the deceased. 
8. [8]
   Yvette arrived from South Australia with her daughter Kelly in August or September 2017 and moved in with her father.  Up until then the deceased had lived at home with Wendy assisting him with his daily needs.  At the time of Yvette’s arrival, the deceased was able to use his cane to walk with assistance but by February 2018 he became wheelchair bound. 
9. [9]
   On 28 March 2018, the deceased executed the EPA which appointed Yvette as his attorney for personal and health matters.  On 3 May 2018, he signed an agreement to transfer a half interest in his real property in Maryborough to Yvette as joint tenant for natural love and affection, together with a Form 1 Transfer.  On 8 May 2018, he signed his final will which appointed Yvette as executor.  He left $5,000 to Steven, $10,000 to Wendy and $20,000 to his friend Kay Rae.  He left the rest of his estate to Yvette together with the provision of the sum of $10,000 for the care of his animals.
10. [10]
    The plaintiffs argue the transfer of the property and the agreement were the consequence of undue influence or unconscionable conduct on the part of Yvette Wylie.  They argue that the deceased was in a state of decline from early 2018 but that Yvette isolated him and prevented members of his family and his close friends from visiting or even having telephone contact with him.  It is argued that Yvette was in a position of dominance over him and exercised control over his life particularly his chattels.  It is further argued, given this isolation and her dominance, the deceased was completely reliant on her assistance and for the provision of daily domestic services.
11. [11]
    As Yvette was the deceased’s Attorney at the time pursuant to an EPA document there is a presumption that the transaction is in fact the result of undue influence.  The defendant must rebut this presumption.
12. [12]
    Counsel for the defendant argues the deceased was a determined and opinionated senior citizen who had capacity at all relevant times.  It is submitted that prior to creating the joint tenancy the deceased received independent legal advice and provided letters to his solicitors prior to his death, providing an explanation for leaving his entire estate in essence to Yvette. 
13. [13]
    There are essentially two issues this Court must determine:

    1. (i)
       Was the Agreement to Transfer, and the Transfer of the half interest in his property by the deceased to his attorney in the last month of his life the result of undue influence from her? Alternatively, was it the result of unconscionable conduct by her? 

and

2. (ii)
   Whether further and better provision should be made from the deceased’s estate for the benefit of his other surviving children Wendy and Stephen Wylie?

The evidence of Wendy Wylie

14. [14]
    Wendy gave evidence that she was her father’s carer from September 2015 until she was cut off from the carer’s pension in February 2018 by Centrelink.  She subsequently learnt that her niece Kelly had been made the carer, although she had never seen Kelly providing any services.  She continued:^[2]

“Firstly, Kelly.  Did you observe Kelly performing any caring services?‑‑‑None whatsoever.

Okay.  And so that only leaves Yvette?‑‑‑That’s right, yeah.

So what was it that Yvette was doing for him?‑‑‑Yvette would, like, cook for him.  She’d clean the house.  She’d help him get up, which, you know, he needed a hand to get up, you know, to be able to get out of the chair.  That’s – at that first stage, he was still using his walking stick with assistance to get to the toilet. 

Yes?‑‑‑You know, or to the bathroom, and he was still fine like that, but I didn’t – I really didn’t see Kelly doing anything because she wasn’t there.

…

How ever that transpired, it was not your observation that Kelly was providing any of the services?‑‑‑No.  No.  It was Yvette that was doing it.”

15. [15]
    Wendy stated that when Yvette moved in, the relationship between them deteriorated and they had arguments, particularly over what foods to feed their father and his medication.  She stated that initially she was relieved to be receiving assistance from her sister, as she was exhausted and had been caring for her brother Robert as well during this time.  However, she said that gradually she became excluded from seeing her father because of the aggressive nature of the interactions of her sister.  Wendy stated that after Yvette moved in, the dynamic changed, and she ceased going out to see him every day.  Yvette became very aggressive to her and would not allow her to speak to her father by herself.  She stated if she said to her father she wanted to speak to him privately, her sister would turn around and say, “If you’ve got anything to say to Dad, you say it in front of me”.^[3] 
16. [16]
    Wendy’s evidence was that things continued to deteriorate and there was a stage where Yvette would not talk to her or would cause an argument and tell her, “You’re not welcome out here”^[4].  She stated her father could not intervene as he was wheelchair bound and that things got to the stage where he could not even hold his head up.  She stated that in the first part of 2018, he was becoming very frail, was wheelchair bound, was slurring his speech, and had difficulty getting his words out.  She also stated he had difficulty with day-to-day matters, and she would have to remind him of simple things such as who a particular person was that she was referring to.  She stated:^[5]

“There was difficulties.  There was a lot of difficulties even going out there and – because, like, when I’d go out there, Dad would be on the verandah by himself sitting there in his wheelchair, having his coffee.  He was just left alone. 

Yes?‑‑‑And – but as soon as I arrived, Yvette would come out and just sit there ‑ ‑ ‑

Yes?‑‑‑ ‑ ‑ ‑ and – and if I was talking to Dad, she would – she would have sarcastic comments while I was trying to talk to him.  And – and I just couldn’t talk to him and she would just come out in front of Dad. 

Okay?‑‑‑“You’re just not welcome out here.”  You know?”

17. [17]
    She also stated there was a particular occasion in March 2018 when she saw her sister in town with her daughter, and it was clear then that her father was alone at the property.  She stated^[6]:

“– Well, I’d seen them in the town – in town – and I thought, “This is the opportunity for me to go out and see Dad.”  And I thought – because they’d been doing shopping.  So I just jumped in the car and I went straight out to Dad, and that’s where I found him on the verandah – on the floor. 

Is it on the floor of the verandah?‑‑‑On the – of the verandah.  There was some blood on the floor. 

Yes?‑‑‑And I said to him – I said, “Dad, how long you been here for?”, and he said – he said to me, “About 20 minutes.  Fifteen to 20 minutes.”

18. [18]
    Ms Wylie continued^[7]:

“Okay.  And what occurred when she returned?‑‑‑Well, Kelly never said anything.  She just pushed past her mother and Yvette said, “What’s that on the floor?”  I said, “It’s blood.”  And she goes – she was really nasty – and she goes, “What was that from?”  I said, “Dad had a fall.”  I said, “He’s been on the floor for 20 – 15 to 20 minutes.”  And I said to her – I did, I said to her, “I told you not to leave Dad by himself.” 

Yes?‑‑‑And she just told me to ‑ ‑ ‑

Go – eff off?‑‑‑ ‑ ‑ ‑ fuck off. 

Okay?‑‑‑Yep. 

Now, in that note – the fourth last line: 

…before I got the –

and then you’ve got: 

Yvette yelled at Dad

Does that mean anything or is that a ‑ ‑ ‑?‑‑‑No, she did.  She said, “What were you trying to do?” 

Okay.  Towards your father?‑‑‑Yeah. 

Was that in your presence?‑‑‑That was in my presence. 

All right.  Now, that’s late-March 2018?‑‑‑Yeah.”

19. [19]
    Ms Wylie stated in April it was very difficult to go out because Yvette was too aggressive and would front up to her at times with her fists closed.  She did however go out in April when she saw that a car she had purchased from her father in 2016 had been put up for sale.  She continued:^[8]

“Because Yvette had – or Kelly.  Kelly had actually put our Holden up for sale – which we had purchased from Dad in 2016 – and we just went straight out to Dad and said, “What’s happening here?”  And Dad didn’t know anything about it. 

Okay?‑‑‑She had put our car up but ‑ ‑ ‑

So that was the – is that – so did you not go out to the property after that time?‑‑‑No, I didn’t.  No.

Is there a reason why you didn’t go out to the property?‑‑‑Too aggressive and she threatened me with restraining orders and she said she had the right to keep me away from the property ‑ ‑ ‑

Right?‑‑‑ ‑ ‑ ‑ which I didn’t know why, and ‑ ‑ ‑

Did you – go on?‑‑‑ ‑ ‑ ‑ and because of Dad being so frail, it’s – you just don’t do that.”

20. [20]
    In terms of discussion about his estate and his future intentions after his death, Wendy stated that when it would come up in general conversation he would say that they could all sort it out after he died, that it was up to them.  She stated he never actually discussed his will, and she had never seen any of his wills.  She stated she did not know that her sister had been appointed her father’s power of attorney. 
21. [21]
    Wendy gave evidence that when she cared for her father, she was aware of his bank accounts and assisted him in paying his bills and rolling over his investments.  She stated the last time she saw the accounts was in August 2017 prior to the arrival of her sister Yvette.  She stated at the time she was assisting him, he had $90,000 in one account, $31,000 in another and $23,000 in his pension account.  She also stated that her father had a safe and he would keep between $10,000 and $20,000 in cash in the safe, together with his war medals. 
22. [22]
    In terms of his general health, Ms Wylie stated that he had a stoma inserted 10 years before his death, as well as some difficulties with emphysema as well as failing kidneys.  Once he was diagnosed with bowel cancer, he deteriorated quickly. 
23. [23]
    Wendy gave evidence that on the last occasion she spoke to her father she felt that he could not speak freely, and she could not sit down and ask him things because he would just hang his head down, and because Yvette would always be sitting there.

The evidence of Steven Hanicz

24. [24]
    Wendy’s partner of 14 years Steven Hanicz gave evidence that Wendy cared for her father after his wife’s death, particularly in the last years of his life.  At times she stayed with him to care for him, and he would also assist by mowing the lawn and assisting to fix some of his cars.  He stated in the last three years Yvette came up from South Australia three times to see her father.  The first was in January 2016 and it was during that visit that he told Yvette and Wendy that the deceased said he was leaving his property to them and their brother Steven.  Yvette subsequently stayed for a couple of months in early 2017 but left after a disagreement in February, saying she had better things to do with her life.  She then moved up with her daughter in late August 2017 to assist him.
25. [25]
    He gave evidence that Yvette started doing a lot of things to the house including painting despite the fact the deceased had emphysema and found it difficult to breath with the paint fumes.  She also started doing up the pool when the deceased had previously told him it was to be filled in as he didn’t have town water and it therefore required tank water which was problematic.
26. [26]
    He stated that Yvette was aggressive during this time, particularly in relation to her demands that particular items be removed from the property. Mr Hanicz gave evidence that in April 2018 he saw his Holden HJ Premier had been put up for sale on Gumtree and he had to go and retrieve it from the property.  He saw the deceased on that occasion and said he saw that the deceased was sweating and had trembling hands. 
27. [27]
    He would try to go out to see him weekly, but it was difficult as there were arguments each time they went out and at one-point Wendy was banned by Yvette from coming inside.  Yvette would always interrupt when they went to visit saying that anything said to the deceased had to be said in front of her.  He stated that the deceased was clearly upset by this and at one stage they were concerned he was suicidal and wanted to end his life.  Wendy was so worried that she rang police and the mental health unit.

The evidence of Steven Wylie

28. [28]
    Steven Wylie resided in South Australia and saw his father only intermittently.  He gave evidence about a visit he made in March 2018 when it was clear that his father was frail and declining physically.  He described an incident when he was talking to his father and Yvette intervened and became angry and aggressive.  He stated that in response his father became withdrawn and stopped speaking.  Later in the day he observed the defendant berating her father for not taking his medication and when he tried to intervene the defendant told him to leave and was rude to him.

The evidence of Kay Rae

29. [29]
    Ms Rae gave evidence of her friendship with the deceased and her experience of Yvette having arguments with Wendy in front of the deceased.  She also observed Yvette saying nasty things about Wendy in front of John.  In her view, Yvette pushed everyone away.  She struggled to keep up her friendship with the deceased in the circumstances but did so to ensure that he was being well treated.
30. [30]
    Ms Rae gave evidence that Yvette was ‘pushy’ and started doing up the house in early 2017 saying, in the deceased’s presence, that she would live there after he died. 

The evidence of Ms Rudledge and Ms Kaslauskas

31. [31]
    The deceased’s friend Ebalina Rudledge gave evidence that she was discouraged from visiting soon after Yvette’s arrival.  She stated she did not feel welcome at the home given Yvette’s constant hostile demeanour and she decided not to visit any more. Ms Rutledge stated:^[9]

“I cannot remember the date when I met the Defendant for the first time.  That meeting was at the Deceased’s house, and it was uncomfortable from the start.  She would always give me a malevolent look that made it clear I wasn’t welcome.  I noticed the contemptible looks the Defendant gave the Deceased, Kay Rae and the First Plaintiff.”

32. [32]
    Rita Kazlauskas also stated she did not visit after receiving texts from Yvette, which she considered to be rude, demanding the return of a sewing machine that the deceased had previously lent to her.  When she returned the machine, she said she went into the house and gave the deceased a hug and said “…I could not come to visit him because I did not feel welcome in his house anymore.”^[10]  She also stated when she tried to ring him Yvette would always answer the phone and say “he’s busy or he’s sleeping or he’s just too tired to talk to me.”^[11]  She did manage to speak to him twice after Yvette moved in but “he was- he sounded very tired, very sleepy, very- I thought he sounded drugged”.^[12]

The evidence of Kelly Tucker

33. [33]
    Yvette’s daughter Kelly Tucker gave evidence and stated that she came up with her mother to care for her grandfather because it was too much for one person to do.  She stated that her grandfather had indicated that prior to their arrival when Wendy was caring for him she would go out every couple of days, but did not reside with him. 
34. [34]
    Her evidence was that she was present on the three or four occasions the lawyers spoke to her grandfather and heard what was said unless she was asked to leave the room.  Her evidence was that her grandfather told the lawyers he wanted her mother to have the property.  Kelly also stated she could recall an occasion when the lawyers came out and they were talking about her grandfather’s assets and her grandfather turned to her mother and asked her, in the presence of the lawyers, what he should do with his assets.  She stated that her mother replied, “Do what you want”.  She did not recall any occasion when the lawyers came out and the deceased could not remember what was in his last will.
35. [35]
    Kelly gave the following evidence in response to questioning by Mr Collins:^[13]

“And what would the lawyers do, to your recollection, whilst you and your mum were sitting there?‑‑‑Ask grandad about the property, wills, what he wanted, what he didn’t want and they’d just discuss all of that.  And then if they wanted us to leave the room, we would leave while they spoke to Grandad separately.

So I want to be clear on this – are you giving evidence that you were asked to leave the room?‑‑‑Yes.

Okay.  How many times were you asked to leave the room?‑‑‑Probably every time that they came out there.

So your evidence is now – well, I’ll just start again, sorry.  Your evidence is that you’d sit around discussing it with Grandad in their presence about what Grandad wanted.  Correct?‑‑‑Yes.

And Grandad would tell them what he wanted in your presence?‑‑‑Yes.

And then suddenly you were asked to leave the room.  Is that your evidence?‑‑‑So that they could – yes, so that they could speak to him privately. 

So after they’d spoken to you in front of him – they’d spoken to him in front of you and your mother, you were then, Kelly Tucker, asked to leave the room, were you?‑‑‑Yes.

I just suggest to you that’s just not the case.  That never happened?‑‑‑Well, it did happen.”

36. [36]
    Kelly stated the transfer of the property into her mother’s name came up frequently and her grandfather said he wanted Yvette to have everything.  His exact words were that he did not want Wendy to have “anything”.  She said it was his idea to transfer it into her name and he arranged for the lawyers to come out.  Kelly also gave evidence that her mother would use her father’s card to go to the ATM and transfer money and the transfers of large sums of money before her grandfather died in April or May of 2018 would have been done by her mother as her grandfather had no ability to go into town and do those transactions.  She agreed that any money transferred out of the account on the day her grandfather died would have been done by her mother.  Kelly agreed that from at least April on, her grandfather was in a very poor state of health and had resigned himself to the fact he was going to die.  He was essentially either bedridden or in his wheelchair. 
37. [37]
    She stated that neither she nor her mother contributed towards any of the bills, and they stayed there rent-free.  She confirmed she was paid the carer’s pension as her mother did not wish to be paid for looking after her father.  She stated that she would do go to the chemist for her grandfather and do some of the shopping and house cleaning.  Counsel for the plaintiffs asked:^[14]

“Can I suggest to you that the real reason your mother wasn’t registered as a carer is that she could not qualify as a carer?  She had a medication condition which prevented her being recorded as a carer;  are you aware of that?‑‑‑She never qualified – like, she never went to try and be his carer.”

38. [38]
    Kelly also confirmed that the swimming pool was in a difficult state when they arrived and was green and dangerous.  She stated her grandfather was upset that it had deteriorated and wanted to get the pool fixed and to be brought up to standard.  She agreed she and her mother wanted to get the pool updated and that they would be the ones using it and that the pool was only completed two weeks before her grandfather died. Kelly stated her grandfather’s property was currently rented with the rent going to her mother.  She stated her mother resided in the house for a year after her grandfather died and that her mother borrowed against the house to buy a house in South Australia which was secured by a mortgage against her grandfather’s old house.
39. [39]
    Kelly stated in the three months before he died the only persons to visit other than the nurse, Sue McDonald, were some cousins and his friends Kay Ray, Jo Christmas and her husband David.  She agreed that he was essentially only with her and her mother but that despite his failing health he was alert mentally.
40. [40]
    Kelly gave evidence that the relationship between her mother and her aunt Wendy was absolutely fine and she did not observe any breakdown in the relationship.  Her mother would welcome her and take her to see her grandfather as she wanted his last time together with his family as a happy one.  She did not recall any conflict that occurred when Wendy found her father on the floor when she and her mother were out. She stated in the six months prior to her grandfather dying, her aunt Wendy came out to the property about once a week and that her mother did not ever prevent access to her grandfather.  She stated it was always a peaceful environment when Wendy arrived.  Kelly specifically denied she was fabricating this version of events regarding the relationship and denied that her mother ever took any active steps to prevent or discourage Wendy, or anyone else, from coming to visit her grandfather.  She also denied that her mother prevented anyone from talking to her grandfather on the phone. 
41. [41]
    In relation to her uncle Robert, who had had a tragic life and was experiencing severe dementia towards the end of his life, she indicated that a lot of his property including caravans had been left on her grandfather’s property, but that her grandfather was quite happy with that arrangement.  

The evidence of Yvette Wylie

42. [42]
    Yvette confirmed she and her daughter Kelly came up in late August or early September 2017 with the intention of permanently residing with her father until he died.  She stated whilst his physical condition continued to deteriorate, particularly in the last three months, his mind did not.  She accepted however, that when the solicitors had attended on him in January 2018, the day before his birthday, he could not remember what day it was.^[15] Yvette also gave the following evidence under cross examination: ^[16]

“Okay.  And do you recall that Ms Mehmet asked your father if he could remember what “changes we had discussed last time” she was there, one week earlier.  Ms Mehmet asked him, in your presence, could he remember the changes we had discussed last time in relation to his will, and your father said he couldn’t remember.  Do you remember ‑ ‑ ‑?‑‑‑Yeah, that’s true.”

43. [43]
    Yvette accepted she and Kelly paid no rent during their time at the property but stated that they paid their own bills and helped by paying for food and put money towards the power bills.  She also asserted that Kelly was registered as the carer because that is what her father wanted. She initially accepted that she was in fact doing the majority of the care, with Kelly assisting but subsequently maintained that “at times” her daughter would do most of the caring. 
44. [44]
    She gave evidence that initially the palliative care nurse Sue McDonald would come out once a fortnight for half an hour to an hour but that became once a week as he progressively became more ill.  Yvette disputed that her sister Wendy cared for her father prior to her arrival and argued that essentially her father was left to fend for himself.  She agreed that she came out after her arrival about once a week or once a fortnight but that she did not assist them in any way.  She stated she had no problem with her sister attending on her father and never discouraged her or anyone from visiting her father.  Yvette argued that she would have to ask her sister to come out to visit and on the day of her father’s fall she had asked Wendy to come out, but she said she was too busy. 
45. [45]
    Yvette denied that her brother Steven came to visit her father with any regularity and only recalls an incident where he came to collect a trailer and trucks.  She stated that she would have been told of his visits if he had in fact visited.  She recalled an occasion when Steven and his son attended in March 2018 and denied that she was abrupt or that she had sat down and stared at them.  She stated her recollection was that she had been welcoming and had given Steven a hug.  When Wendy brought her brother Robert out to visit her father, however, she asked her not to bring him again as was kicking the dogs.  Yvette stated that her father loved his dogs and indicated that she had been left $10,000 in the will to look after his dogs.  She also agreed that Robert was in very poor circumstances prior to his death but there was no indication that he would die so soon after her father. 
46. [46]
    Yvette also volunteered early in her evidence that she would be asked to leave when the solicitor attended to discuss the will with her father. She subsequently agreed not only had she made the hand-written alterations to her father’s existing will but had stayed for the subsequent discussion.  She also agreed she was present during the discussion about some money being left to pay for Robert’s funeral and she recalled the discussion with the solicitor about the specific gifts of particular vehicles in the will.^[17]  Under cross examination she accepted she was present when the solicitor discussed the changes with her father as follows:

“Now, on that occasion on the 23^rd of January do you recall Ms Mehmet saying to your father in your presence that the changes ‑ ‑ ‑?‑‑‑Changes? 

‑ ‑ ‑ he proposed to the will meant that Steven, Robert and Wendy were getting significantly less than you?‑‑‑I think she may have said something to that effect.

Right.  Did you not think ‑ ‑ ‑?‑‑‑ [indistinct]

‑ ‑ ‑ that was time for you to step in and say, “Dad, no.  It’s got to be equal between the kids, Dad.  Don’t do that.”?‑‑‑No, I didn’t say that to him because that’s – Dad’s not the type of person that you can tell to do anything.”^[18]

47. [47]
    Yvette also agreed that she had to tell her father how much money he had in the bank as follows:

“On that same occasion – this is the 23^rd of January – Ms Mehmet asked Albert how much he had in his bank account, and he said words to the effect “Yvette thinks there is about $150,000”.  So he stated that you thought there was about $150,000, and that’s what he told the solicitors;  is that correct?‑‑‑Yeah.^[19]

48. [48]
    It was also clear from Yvette’s evidence that when Ms Mehmet attended on 12 April, she was also present when the contents of the will were read to her father:^[20]

“Notwithstanding that, you sat at the table whilst the lawyers were there with your father?‑‑‑Mmm.

And Kara read out the last version of the will?‑‑‑Yes, when Dad had asked her to read it out.

Right.  And didn’t give it to him to read.  Is there any reason why they didn’t give it to him to read?‑‑‑I’m pretty sure that she did give it to him to read.”

Evidence of Ms Susan McDonald

49. [49]
    Ms McDonald was a nurse practitioner in the Maryborough region for terminally ill patients and received a referral from the deceased’s General Practitioner, Dr Sharif.  Ms McDonald stated that by the time she was engaged Mr Wylie needed assistance to manage his stoma and the colostomy bag as he needed to cleanse the area, remove the bag and use protective barrier cream around the site and then replace the apparatus.  She stated it would take around a half an hour and that because he had lost weight it was becoming a little more difficult to change the appliances. 
50. [50]
    She first attended on 12 October 2017 and advised both Yvette and Kelly that the deceased had terminal cancer and his life span was a matter of months.  She gave evidence that she cared for the deceased in his own home until he took his last breath.  She stated Yvette provided care and that her daughter would assist at times by picking up prescriptions and groceries.  Kelly Tucker would often not be there when she arrived.  
51. [51]
    When she attended on 2 November 2017, she noted the deceased had poor appetite and was not only fatigued but was unstable on his feet.  On 16 November she noted he had lost weight and had a reduced appetite.  On 18 January, she noted that he was only mobile for short distances and was dependent on Yvette to assist him with longer distances in the wheelchair.  She stated that by January 2018 he was essentially dependent on Yvette for his physical activities.  Ms McDonald stated that as a nurse practitioner she was able to prescribe medications for Mr Wylie and that one of the drugs she had prescribed him was for depression.  She stated that she received a number of phone calls from Yvette seeking her assistance in relation to managing a number of issues that arose.  Ms McDonald stated she had seen an advanced health directive on one of her first visits to see Mr Wylie and noted that on 29 March, Mr Wylie told her that he had a solicitor come out and that he had finalised his personal and financial affairs. 
52. [52]
    She stated on 13 April 2018, Mr Wylie had global pain and discomfort and difficulty sleeping as well as poor appetite.  His mobility was also noted to be declining.  On 31 May, it was also noted that Mr Wylie had had another fall and had sustained some soft tissue injuries to his wrist and shoulder.  By that date his colostomy bag was leaking, and he had bilateral foot oedema.  Essentially by the end of May she acknowledged that he was in a very poor state. 
53. [53]
    Ms McDonald stated she only met with Wendy once, possibly twice and that when Yvette spoke about Wendy it was in disparaging terms including an allegation that Wendy had taken all of her brother’s belongings after his death.  Ms McDonald stated that whilst the deceased had some issues around failing health and his death, he was able to rationally discuss his ongoing care with her and had no difficulty in expressing himself.  She did not however discuss with him his finances, his assets, his will or anything of a complex nature.  
54. [54]
    Ms McDonald also stated she was not aware that Mr Wylie had a long history of depression or that he had been on antidepressants for a period of time.  She also acknowledged that towards the end of his life, he had a morphine driver and was self-administering morphine.  She stated whilst Mr Wylie would engage in conversation with her, he was not a great talker and in the last two weeks of his life he was essentially very drowsy.

Evidence of Kara Lee Mehmet

55. [55]
    Ms Mehmet stated she was admitted as a solicitor in December 2014 and when she had her first involvement with Mr Wylie, she was three years post-admission.  Ms Mehmet’s file notes indicate that attended upon the deceased on seven occasions in four months:

    1. (a)
       at his premises on 16 January 2018;
    2. (b)
       at his premises on 23 January 2018;
    3. (c)
       at his premises on 28 March 2018;
    4. (d)
       by way of telephone on 5 April 2018;
    5. (e)
       at his premises on 12 April 2018;
    6. (f)
       at his premises on 3 May 2018; and
    7. (g)
       at his premises on 8 May 2018.

56. [56]
    She acknowledged that Mr Wylie had been a client of the firm for some time and that she attended his home on 16 January 2018 because Yvette rang and said Mr Wylie wanted to change his will and asked that “I attend his house to meet with Albert”.^[21]  She stated that when she attended in January he was in his wheelchair and Yvette was in attendance, as was her daughter.  She noted that when she asked Mr Wylie whether he want to change his will, he said yes, but he could not remember what was in his will.  At that point Yvette provided Ms Mehmet with a copy of the will with the handwritten changes on it.  She was not sure who had made the handwritten changes.  The changes were that Yvette was to receive $60,000 and Wendy was to receive $30,000. 
57. [57]
    Ms Mehmet stated that Mr Wylie indicated that the reason he wanted to change his will was that he was lucky if he saw Wendy once a week and that she couldn’t care less.  He wanted therefore to make sure Yvette got more than Wendy.  There was then a discussion about a Ford Galaxy and when she asked if Wendy was to still get it, he said yes, at which point he turned to Yvette and said, “Well you don’t want it”, at which point she said, “Yes, I’ll take it and do it up”.  He then said he would give the Cougar to Yvette.  Ms Mehmet agreed that discussion occurred whilst both Yvette and Kelly were still present, as was the discussion when he later said he wanted Wendy to get $20,000 and Yvette to get $80,000.  It was at that point that Yvette asked if there was anything they could do with Robert’s share. She was advised that Robert had dementia and that Wendy was looking after his finances.  There was then a discussion about Wendy having access to an ATM card and accordingly it was arranged for the money to be held in trust for Robert’s funeral.
58. [58]
    The next visit was on 23 January 2018.  Those notes include a note that the deceased could not remember what changes to his will had been discussed previously and so she read them out in his presence, and he agreed to them.  Ms Mehmet agreed that the client was Mr Wylie and knew that she was taking instructions from him in the presence of his carer.  She knew that Yvette was caring for him and that he was altering his will to the benefit of his carer. She agreed that these discussions occurred whilst his carer was present and were to the detriment of his other daughter and son. When asked by Mr Collins:

“Did it occur to you that he was doing that whilst his carer was present?‑‑‑Yes.

Did it occur to you that you should have made sure that the carer, being Yvette, who was to be a beneficiary of the will should be, with respect, nowhere near John when you were having these conversations?‑‑‑No.

It didn’t occur to you?‑‑‑Not – not while they were – not while they were at the house.  They were living together.

No.  No, but you could’ve said Yvette, I need to speak to John alone.  I’m going to ask you and Kelly to go into the other rooms or out into the backyard or out the front.  I need to speak to John alone.  Did that not occur to you?‑‑‑No.”

59. [59]
    Ms Mehmet’s practice of discussing the deceased’s affairs in Yvette’s presence is particularly apparent from her file note form 5 April.  Those notes record the following:

“I advised Yvette that we could only act for Albert in this Transfer and she is entitled to obtain independent legal advice. I advised Yvette that if she did not want to obtain independent legal advice we could simply stamp the transfer on her behalf Yvette advised that she would like us to stamp the transfer for her. I asked Yvette if she had ever owned property before anywhere in the world and she advised me that she has never owned property before.

I advised Albert and Yvette that as the property is being transferred by way of gift, we would need to obtain a market appraisal for the property from an agent. I asked them if they knew an agent that could provide this or whether they would like us to obtain a market appraisal on their behalf Albert said he would like us to organise it.

I discussed with Albert preparing a residence agreement to set out the terms of he and Yvette living together. Albert wanted me to prepare the agreement and Yvette and Albert advised that they would share equally in all expenses for the house.” (my emphasis)

60. [60]
    From the matters I have underlined it is manifest from that file note that not only was Yvette present during the discussion about the agreement and the transfer of an interest in the house, but Ms Mehmet was actually advising her.  There was no attempt to ensure that the deceased obtained independent legal advice.  I agree with Counsel for the plaintiffs submission that an extraordinary feature of this discussion was that Yvette was present the entire time and that Ms Mehmet raised with the deceased and the defendant the question as to whether the defendant should obtain independent legal advice and not focussing on the question of ensuring the deceased got independent legal advice.  As Yvette advised, she did not need independent advice she indicated that she would like the solicitors to stamp the transfer for her.  Ms Mehmet also discussed with Yvette the need for an appraisal for stamp duty purposes and entering into a residence agreement in respect of their joint occupation of the premises.
61. [61]
    Ms Mehmet was clearly not only giving    advice to both the deceased and the defendant, but she did not ensure that the deceased obtained important independent legal advice.

Credit Findings

62. [62]
    Yvette and Kelly stated the deceased was mentally alert to the end; however, Ms Mehmet gave evidence that he could not remember what was in his last will or in his bank account as early as January 2018.  Ms McDonald also stated that not only was Mr Wylie on medication for long term depression but that he was self-administering morphine for months before his death, and by April/May 2018 he was in a poor state.  I also note that the medical records indicate that he was taking Valium as required.
63. [63]
    The statements by both Yvette and Kelly that the deceased was mentally alert to the end of his life was simply not borne out when one considers the evidence.  As early as January 2018 he did not know what day it was, he did not know what was in his will and did not know how much he had in his bank account and that he could not recall the changes he had made with his solicitor on her previous visit.
64. [64]
    Kelly also confidently asserted that it was her grandfather who rang the solicitors to get them to come out to see him, however, the file notes indicate that Yvette rang and stated her father wanted to change his will.  Kelly also gave evidence that her grandfather said he wanted her mother to have “everything” when that was clearly an overstatement and inconsistent with some of the earlier drafts of his will or indeed his final will.
65. [65]
    Kelly also gave evidence that she would leave the room so that her grandfather could discuss things privately with his solicitor.  The evidence of Ms Mehmet, the solicitor, was that the family were always present during these discussions and were never asked to leave the room.  Indeed, Ms Mehmet’s extraordinary evidence was that it did not occur to her to do so.  I consider Kelly Tucker’s evidence to be false and was contrived late in the case when it became apparent that the lack of an independent consultation was an issue in the trial.
66. [66]
    I also consider that Kelly was not truthful about why she was appointed as the carer.  Kelly was clearly not performing the work of a carer as indicated by Wendy and verified by the nurse practitioner Sue McDonald.  Kelly was obviously nominated as carer as her mother could not qualify because she was on a disability pension herself. 
67. [67]
    I also consider Yvette fabricated her account as to why she was not appointed as carer.  Yvette also gave evidence that there were no hostilities between herself and Wendy and that she welcomed visitors to the property when the evidence clearly indicates that to be false.   The evidence reveals that Yvette actively discouraged not only Wendy but Ebalina Rutledge and Rita Kaslauskas from visiting. Additionally, there was evidence that Yvette would regularly tell these witnesses that the deceased was not available to see them or even speak to them.  In coming to an assessment as to credit I have also considered the evidence which was contained in the medical records which were an exhibit in the trial.
68. [68]
    Those records^[22] indicate that Wendy frequently attended medical appointments with her father and was also described as his carer on his medical records.  Those records also indicate that at that time he was requiring assistance with his daily cares.  That does not substantiate Yvette’s claim that her father had been left to fend for himself prior to her arrival.  Those records also indicate that Yvette instructed Dr Sharif on 15 March 2018, she was the attorney for the deceased and that he was not to divulge any information to anyone about the deceased’s circumstances to Wendy.  She advised that Ms McDonald had a copy of the EPA.  Whilst the medical records indicate a discussion had occurred, Yvette was not actually appointed as attorney until 28 March 2018 some two weeks later when the document was executed and witnessed by the solicitor. 
69. [69]
    There is also a consistent account, including from a number of independent witnesses, that Yvette was not only demanding and rude but was aggressive to each of them during their visits to the deceased during the last months of his life.  I also found Yvette to be aggressive during her evidence and whilst her answers attempted to paint her in the best possible light, I consider her aggressive and domineering character was manifest.  Ms Mehmet also stated that during her visit in April 2018 the deceased told her that he never saw Wendy and that she was not to be trusted and had gone ‘weird’ and would end up like Robert.  There could have only been one source in my view for information of that nature and that was Yvette.
70. [70]
    Yvette initially made a blanket statement that she was not present when the solicitors spoke to her father about his will when the evidence subsequently revealed that this was simply not true and that she was in fact present for those discussions.  Her evidence was on the whole contradictory and inconsistent.  I found her to be an untruthful witness.
71. [71]
    Having considered all the evidence and having seen Yvette and Kelly give evidence, I have very real concerns about the veracity of significant aspects of their evidence. Accordingly, I do not accept the evidence of either Yvette or Kelly unless it is corroborated by other evidence.
72. [72]
    In this regard I am satisfied that Yvette initiated contact with the solicitors about changes to her father’s financial affairs and that she and Kelly were present during discussions about his finances and his will. 
73. [73]
    I am also satisfied that the deceased was becoming forgetful and confused by January 2018.  In April his condition had deteriorated and in May 2018, Ms McDonald considered that he was in a very poor state. An examination of the medical records also makes that very clear.
74. [74]
    I also consider there is a consistent body of evidence that the deceased was in fact isolated by Yvette from his friends and family in the nine months prior to his death.  The witnesses gave a consistent account of Yvette being aggressive and overbearing to them and that this behaviour discouraged them from visiting.  Furthermore, the evidence also indicates that attempts to contact the deceased by phone were also frustrated by Yvette.
75. [75]
    Ms Mehmet gave evidence that the reason the deceased wanted to change his will in January in favour of Yvette was that Mr Wylie believed that Wendy did not bother about him and did not come out to see him.  In my view, that was as a result of deliberate attempt to prevent Wendy from seeing her father. 
76. [76]
    The plaintiffs pursue a claim on the basis that the transfer of the property was the subject of undue influence exerted by the defendant on the deceased.  As noted, as the attorney for the deceased at the time, he made the transfer and indeed at the time he made his new will.  The onus is clearly on Yvette to rebut this presumption of undue influence.

The legislation

77. [77]
    Section 87 of the Powers of Attorney Act 1988 (Qld) provides that there is a presumption of undue influence when there is a transaction between the principal and their attorney.  Their presumption is that the principal was induced to enter the transaction by the attorney’s undue influence.  Accordingly, the ordinary onus that the plaintiffs would have to prove a case of undue influence on the balance of probabilities has in fact shifted and the defendant must now displace the presumption that the transaction was the result of undue influence. 
78. [78]
    The recent decision of the Court of Appeal in Birch v Birch^[23] contains a convenient analysis of the law.  McMurdo JA, with whom Fraser JA and Bradley J agreed, stated:

“[60] The argument refers to the statement by Dixon J in Johnson v Buttress, that the onus lies on the party in the position of influence to prove that:

“[H]e took no advantage of the donor, but that the gift was the independent and well-understood act of a man in a position to exercise a free judgment based on information as full as that of the donee.”

Dixon J there continued:

“This burden is imposed upon one of the parties to certain well-known relations as soon as it appears that the relation existed and that he has obtained a substantial benefit from the other. A solicitor must thus justify the receipt of such a benefit from his client, a physician from his patient, a parent from his child, a guardian from his ward, and a man from the woman he has engaged to marry. The facts which must be proved in order to satisfy the court that the donor was freed from influence are, perhaps, not always the same in these different relationships, for the influence which grows out of them varies in kind and degree. But while in these and perhaps one or two other relationships their very nature imports influence, the doctrine which throws upon the recipient the burden of justifying the transaction is confined to no fixed category. It rests upon a principle. It applies whenever one party occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependence or trust on his part. One occupying such a position falls under a duty in which fiduciary characteristics may be seen. It is his duty to use his position of influence in the interest of no one but the man who is governed by his judgment, gives him his dependence and entrusts him with his welfare. 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. He may be taken to possess a peculiar knowledge not only of the disposition itself but of the circumstances which should affect its validity; he has chosen to accept a benefit which may well proceed from an abuse of the authority conceded to him, or the confidence reposed in him; and the relations between him and the donor are so close as to make it difficult to disentangle the inducements which led to the transaction.” (footnotes omitted)

Has the presumption of undue influence been rebutted?

79. [79]
    Counsel for the defendant argues that the deceased received independent legal advice from a solicitor, Ms Mehmet, who gave no indication that he did not understand what he was doing or was the subject of undue influence.  Furthermore, counsel argues that Ms Mehmet carefully explained the Agreement and consequences of creating a joint tenancy and ensured that Yvette was not always in the room when the deceased was giving instructions.  It is argued the deceased would have been able to indicate to his lawyers if he was being influenced.  That is not the test.  Yvette has to positively satisfy me that Mr Wylie was not the subject of undue influence. 
80. [80]
    Put simply, there is not a shred of evidence that Mr Wylie received independent legal advice. As previously indicated that was not the evidence of Ms Mehmet.  Yvette was present during the discussions between the solicitor and the deceased about the Agreement, the Transfer and indeed the very changes to his will that favoured her.  Those discussions were clearly to her benefit and there is simply no evidence of any independent advice being given to the deceased about the effect of these transactions.  Ms Mehmet’s own evidence and her contemporaneous notes indicate that Yvette was indeed present during the discussions. 
81. [81]
    In this regard the essential elements and requirements for independent advice were discussed in Birch v Birch where it was held that the duty of a solicitor is to protect the donor against himself, and not merely against the personal influence of the donee, in the particular transaction.  It was also held that a the solicitor does not discharge his duty by satisfying himself simply that the donor understands and wishes to carry out the particular transaction but must also be satisfied that the gift is “ right and proper  for the donor to make under all the circumstances”.  It was held that if the solicitor was not so satisfied then the duty is to advise his client not to go on with the transaction, and to refuse to act further for him if they persist.  No such exercise was undertaken in this case.
82. [82]
    Whilst I note that there are two handwritten notes from the deceased which were placed into evidence.  There is doubt cast upon the origin and authorship of the notes as one is undated and one is dated May 2017, which is a year before the deceased’s death and prior to his condition becoming terminal. Furthermore, as none of the eight wills were signed in May 2017 it does coincide with the preparation of a will.  In my view, they were notes which were provided out of context a year before the transactions under discussion.  In addition, they do not explain the deceased’s actions or provide any evidence whatsoever of independent advice. 
83. [83]
    I find that Yvette Wylie has not excluded the presumption that she exerted undue influence on the deceased such that she influenced his decision to make her a joint tenant on 3 May 2018 just weeks before his death.
84. [84]
    Ordinarily such a finding would result in the transaction being set aside. However, Yvette Wylie subsequently borrowed money from the Commonwealth Bank of Australia and a mortgage was registered against the property on 8 October 2018.  I accept the bank has acquired a registered interest in the property on a bona fide basis which would make recission impossible.  Accordingly, I agree with the order which has been proposed by Counsel for the plaintiff that there should be a declaration that the defendant holds the property on trust for the estate.
85. [85]
    Whilst the plaintiffs have pleaded a claim of unconscionable conduct given my conclusion regarding the question of undue influence, I do not consider it necessary to pursue this aspect of the claim and neither party has addressed this aspect of the claim to any extent. 

Application for further and better provision

86. [86]
    The deceased made eight wills in the two-and-a-half-year period between November 2015 and May 2018. They were dated 26 November 2015, 16 February 2016, 24 May 2016, 29 September 2016, 17 January 2017, 6 June 2017 and 23 January 2018.  The seven previous wills ^[24]are in evidence. 
87. [87]
    The will dated 26 November 2015 left a car to Yvette, $40,000 to Kay Rae, $20,000 to Anna Rudlege, $5,000 to Steven, $20,000 to Yvette, $20,000 to Wendy, $10,000 to R’Joliza, $20,000 for the care of his animals with the residue left to Yvette and Wendy in equal shares as tenants in common.
88. [88]
    The will dated 16 February 2016 left a car each to Wendy and Yvette, $40,000 to Kay Rae, $20,000 to Anna Rudlege, $5,000 to Steven, $5,000 to Robert , $20,000 to Yvette, $20,000 to Wendy, $10,000 to R’Joliza, $20,000 for the care of his animals with the residue left to Yvette.
89. [89]
    The will dated 24 May 2016 left a car each to Wendy and Yvette, $30,000 to Kay Rae, $5,000 to Steven, $5,000 to Robert, $20,000 to Yvette, $60,000 to Wendy, $20,000 for the care of his animals with the residue left to Yvette.
90. [90]
    The will dated 29 September 2016 left a car each to Wendy and Yvette, $30,000 to Kay Rae, $5,000 to Steven, $5,000 to Robert, $40,000 to Yvette, $40,000 to Wendy, $20,000 for the care of his animals with the residue left to Yvette and Wendy in equal shares as tenants in common.
91. [91]
    The will dated 17 January 2017 left a car each to Wendy and Yvette, $30,000 to Kay Rae, $5,000 each to Steven Wylie and Robert Wylie, $30,000 to Yvette, $50,000 to Wendy and her partner Steven in equal shares with the residue to Yvette.
92. [92]
    The will dated 6 June 2017 left a car each to Wendy and Yvette $30,000 to Kay Rae, $5,000 each to Steven Wylie and Robert Wylie, $30,000 to Yvette, $60,000 to Wendy and her partner Steven Hanicz in equal shares with the residue to Yvette.
93. [93]
    The will dated 23 January 2018 left both vehicles to Yvette, $20,000 to Kay Rae, $5,000 to Steven, $5,000 on trust to pay for Robert’s funeral, $80,000 to Yvette, $20,000 to Wendy and Steven in equal shares with the residue to Yvette.
94. [94]
    The plaintiffs have applied for further provision as a result of the deceased’s final will and testament made on 8 May 2018.  The final will and testament left $20,000 to Kay Rae, $5,000 to Steven, $10,000 to Wendy, $10,000 to Yvette for the care of his animals with the residue to Yvette.
95. [95]
    There is no evidence before me that the deceased lacked capacity to make a will and the plaintiffs do not contend as such.  The fact that the deceased made eight wills in two and a half years indicates to me however that he had great difficulty in coming to a conclusive determination about the distribution of his assets after his death.  In particular he was happy to leave the bulk of his estate to his 2 daughters in November 2015 but then three months later changed his mind and left the residue to Yvette in February 2016.  He then changed his mind again in September 2016 and left the residue equally.  He then changed his mind again and left the bulk to Yvette some four months later.
96. [96]
    The evidence of Steven Hanicz outlined some of the dates of Yvette’s visits to the deceased in years before his death and it would seem to me that the changes to his will often coincided with visits by Yvette.  I also note that during the 9 months Yvette was living with the deceased the changes to his will increasingly benefitted Yvette. The eight wills however all showed a clear intention to provide for his children, particularly Wendy, Yvette and Steven. 
97. [97]
    It is not contended that Kay Rae should be deprived of the sum left to her in the deceased’s will.

The applicants’ financial positions and submissions

98. [98]
    Having determined that the defendant had not rebutted the presumption of undue influence I consider that the property should become an asset of the deceased which is to be held on trust and that in the further provision application a notional wise and just testator would have regard to this asset at the date of death in determining the question of what further provision should be made.  I consider that assessment should also include some of the benefits Yvette derived from the deceased prior to his death.
99. [99]
    In this regard I note that whilst Yvette received $70,568.75 in estate funds after his death, there were other payments to her benefit while the deceased was alive and was his attorney:

100. [100]
     Yvette’s evidence at trial about the arrangements made for the cash withdrawal of $40,000 and the other expenditures was in the following terms:

“Can you recall the contents of the telephone call?‑‑‑Dad got me to ring them because he couldn’t hear them properly.  And so I had to make the arrangements.

And what did you say to them?‑‑‑I just said to them that, “Dad wants 40,000 taken out.”  And they said, “Well, we’ll have to make arrangements.” 

But did they want to know who you were?‑‑‑They already knew who I was, because I bank with them, too.

Okay.  So you’re just saying, “My father wants 40,000 cash and could you please make arrangements for that.”?‑‑‑Yes.

Did you find it unusual that your father, who was quite sick and ill at that time and was unable to look after himself, wanted 40,000 cash?‑‑‑Well, I did think it was a bit strange, yes.

Did you say, “No” ‑ ‑ ‑?‑‑‑But that’s – is what he wanted.

“But, Dad, that’s a high risk.  Someone could break in and steal that money.  Don’t do that, Dad.”  Did you say that to him?‑‑‑No.

Right.  So you just happily went along and got 40,000 cash out?‑‑‑I went along with whatever Dad wanted.

All right.  Now, on the 15^th of May you transferred to your own account the sum of 10 – 15^th of May 2018 you transferred to your own account a further sum of $10,300.  What was that for?‑‑‑No, I did not.

All right.  Somebody has transferred – well, only you were operating the account.  I’m suggesting to you on the 15^th of May two thousand and twent – ’18 the sum of 10 thousand ‑ ‑ ‑?‑‑‑Thank you, 2018. 

Yes.  That ‑ ‑ ‑?‑‑‑Yes, that was more than likely ‑ ‑ ‑

Ms Wylie – Ms Wylie ‑ ‑ ‑?‑‑‑Sorry.

Everything here is in 2018, in the month before ‑ ‑ ‑?‑‑‑Okay.

‑ ‑ ‑ your father died.  So think of his condition?‑‑‑Okay.

Think of the circumstances.  We’ve already talked about you getting 22,295, and then 40,000, and now I’m asking you about another 10,300.  What happened to that money?‑‑‑That would have been for the swimming pool as well. 

So another 10,300 ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ for the swimming pool?‑‑‑The swimming pool was just under $40,000. 

And why wasn’t it transferred to the swimming pool company people directly?  Why does it go to your account?‑‑‑Because that’s just how I had the internet set up.

But if you could transfer it to yours, why couldn’t you just transfer it to the swimming pool company?‑‑‑Well, I – Dad didn’t have internet banking.  I could do it from his, but – I don’t know.  It just went through my account because it was easier for me to do it that way.

These transfer ‑ ‑ ‑?‑‑‑And [indistinct]

When you did these transfers did you do it over the internet or did you go into the bank to do it?  Where we see ‑ ‑ ‑?‑‑‑No, no, no.  I done it over the internet.

So you did have internet banking on his account?‑‑‑I had internet banking.

No ‑ ‑ ‑?‑‑‑Dad didn’t.

No, this is from his account.  His own bank account there is a transfer?‑‑‑Yes.

Did you do that over the internet?‑‑‑Transferred to my account.

So he had internet banking.  Do you not understand that?  Someone did it on the internet ‑ ‑ ‑?‑‑‑I do my ‑ ‑ ‑

Sorry? 

HER HONOUR:   Sorry, Ms Wylie, listen to the question before ‑ ‑ ‑

MR COLLINS:   Yes.

HER HONOUR:   ‑ ‑ ‑ you answer, please. 

MR COLLINS:   Right. 

Ms Wylie, someone transferred it by way of electronic means over the internet to your account.  For that to happen ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ he must have had internet banking?‑‑‑Yes.  Well, after I set it up.

Okay.  So there you are transferring it to yourself and not to the building – or pool company?‑‑‑It did go to the pool company.

All right.  So you’re saying that when you provide all of these documents to Mr Ponti you – we will see all of the invoices from the pool company, together with the payments transferred to them ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ is that correct?‑‑‑Yes.

And I am going to be asking for a direction that you do that at the end of this hearing?‑‑‑Yeah.

So I want you to know – you’re telling me there’s no difficulty with that?‑‑‑Yep.

Well ‑ ‑ ‑

HER HONOUR:   And I would remind you that you’re on oath?‑‑‑Yes, I know. 

So you’ve sworn to tell the truth and you’ve just given this evidence, which has been recorded?‑‑‑Yes.”

101. [101]
     Pursuant to an Order dated 5 February 2021 Yvette was required to provide documents in relation to a number of transactions in relation to her father’s bank account as follows:

     1. (a)
        the cheque payment number 000306 of 3 April 2018 in the sum of $3,750.00;
     2. (b)
        the withdrawal of $8,000.00 on 26 April 2018;
     3. (c)
        the transfers of $1,000.00 and $500.00 on 1 May 2018;
     4. (d)
        the two transfers of $1,038.00 and $1,038.00 to an account number ending 2403 on 3 May 2018;
     5. (e)
        the transfer of $22,295.00 to another bank account on 8 May 2018;
     6. (f)
        the withdrawal of $40,000.00 on 9 May 2018;
     7. (g)
        the transfer of $10,300.00 to an account number ending 2403 on 15 May 2018;
     8. (h)
        the transfer of $1,800.00 to an account number ending 2403 on 22 May 2018;
     9. (i)
        the transfer of $500.00 to an account number ending 2403 on 30 May 2018;
     10. (j)
         the transfer of $5,000.00 to an account number ending 2403 on 4 June 2018.
102. [102]
     Yvette was also required to provide receipts for necessary expenditures with respect to maintenance, improvements or repairs to the property or the swimming pool located at Walkers Point Road, in the State of Queensland.  An affidavit sworn of 15 February 2021 was provided by Yvette.
103. [103]
     In response to that affidavit the plaintiffs contend that Yvette has received substantially greater benefits than them both immediately prior to, and after the death of the deceased.  Counsel for the plaintiffs submits that the benefits referred to include:

     1. (a)
        The payments outlined above which have not been explained which total $53,500.
     2. (b)
        The property, which is valued between $320,000 and $360,000;
     3. (c)
        An amount of $165,000 was able to be borrowed against the property as a security; and
     4. (d)
        Other indirect benefits received towards the end of Mr Wylie’s life which including residing rent free.
104. [104]
     The plaintiffs suggest that where each child of Mr Wylie had received no substantial benefit from him during his lifetime, and with each of them having a broadly similar, supportive relationship with him, the estate should be divided equally in three parts.
105. [105]
     The plaintiffs ultimately submit that, given the benefits afforded to Yvette just prior to, and after the death of Mr Wylie, the balance of the estate should have been split between Wendy and Steven.  The wise and just testator, it is suggested, would have sold the property, paid all debts, and split the remaining funds between Wendy and Steven.
106. [106]
     I accept there are a number of transactions and withdrawals which have not been adequately explained.  Yvette’s evidence was that $40,000 cash was provided to the deceased, and he gave her $20,000 cash immediately and kept the rest.  It would seem to me that the entire amount of $40,000 eventually went to Yvette as the deceased could not have spent that amount of cash as he did not leave the property and there is no basis for her claim that he gave it to his friend Kay Rae.^[25]  Additionally, Yvette’s explanation that she paid for Robert’s funeral out of the deceased’s account was not substantiated as Wendy paid for the funeral and produced a receipt to verify that payment.
107. [107]
     The amounts that have been verified outline significant expenses for the works to the swimming pool in an amount in the order of $35,000, (not $40,000) and were not paid in cash but by online payments.  Those expenses were clearly not for the benefit of the deceased and would seem to be extraordinary expenses for a terminally ill person to undertake particularly as the pool was completed in May 2018 just weeks before the deceased’s death.  In my view, they were for Yvette’s benefit as the deceased was not going to use the pool, and clearly Yvette confidently expected knew she was to inherit the property.
108. [108]
     In my view the invoices for the repairs to the swimming pool must have improved the value of the property, even though the expenditure was unwise given the value of the house and the lack of town water.  Similarly, I accept that there were other expenses for painting, bathroom repairs and other expenditures on the house which no doubt improved the value of the property.
109. [109]
     Yvette argues that the cheque for $3,750 was for a ride on mower however there is no receipt and there is evidence that Yvette subsequently sold it in any event.  The plaintiff’s argue that an analysis of Yvette’s affidavit sworn 15 February 2021 is that there are about $53,500 worth of withdrawals and transfers which have not been adequately explained.^[26] Yvette ultimately produced a motley collection of copies of receipts without any clear explanation for the items she maintains were purchased for the house.  The state of her booking was appalling.
110. [110]
     Yvette’s own evidence that there was approximately $150,000 in his account in January 2018.  I accept that $35,000 was spent on the pool and that Yvette received $70,568.75 after payment of estate expenses.  In terms of the amount of funds that Yvette received I consider that there was some expenditure for items of the house particularly for work on the bathroom.  Significantly however Yvette had not adequately explained the withdrawal of $40,000.  I will add back a notional amount of $40,000 to the funds she ultimately received.  In round figures I consider that she has already had the benefit in the amount of $110,570 ($70,568.75 plus $40,000). 
111. [111]
     In my view, the notional estate consists of the value of the property of approximately $360,000 together with $110,570. which is $470,570.

The law and application

112. [112]
     Such applications are governed by Part 4, Family provision, of the Succession Act 1981 (Qld). Section 41(1) sets out the basic power of the Court to order further provision:

41. Estate of deceased person liable for maintenance

(1) If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant. (emphasis added)

113. [113]
     The relevant principles are well known and I will not outline them in any great detail.  There is no doubt that the plaintiffs must demonstrate that adequate provision was not made from the estate for their proper maintenance and support,^[27] as at the time that the deceased died,^[28] being 5 June 2018.  Whilst Robert was still alive at the time of the deceased’s death he died soon afterwards, and his estate has made no application for further provision.
114. [114]
     In Singer v Berghouse^[29] the High Court held that the court must determine two separate questions regarding each applicant.  Firstly, whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life and second what provision ought to be made out of the estate for each applicant?
115. [115]
     Regarding the first question, an applicant must demonstrate that adequate provision was not made for their proper maintenance and support.  In Singer, it was said this process could include considerations of the Applicant’s financial position, the size and nature of the Deceased’s estate, the totality of the relationship between the Applicant and Deceased, and the relationship between the Deceased and other persons who have legitimate claims upon his or her bounty.
116. [116]
     Both plaintiffs characterise their financial positions as ‘poor’; the first plaintiff Wendy and her partner Stephen both receive a disability pension of $711 a fortnight. Their expenses and liabilities are summarised as follows:

117. [117]
     Steven Wylie earns $150 a week from his casual employment.   Rosemary, Steven’s wife, is a carer for their son who has as significant disability, receiving a carer’s pension of $800 a fortnight:

118. [118]
     I accept that the plaintiffs are each in a poor financial position and that they each meet this threshold requirement in that adequate provision was not made in respect of each of them.^[30]
119. [119]
     I also accept the plaintiff’s submission that although Wendy had more contact with Mr Wylie as his carer, the provision afforded to both she and Steven should be ‘broadly equal’.
120. [120]
     I am also satisfied that there is a ‘strong moral claim’ for further provision for each of them, both being supportive of their father, and particularly Wendy who was the carer of and visited the deceased for many years.

The defendant’s financial position and submissions

121. [121]
     The defendant, Yvette, filed submissions in relation to the undue influence application on 26 February 2021 but failed to provide submissions in relation to the application for further provision until 29 June 2021.
122. [122]
     In those further submissions, Counsel for Yvette accepted the applicants’ submissions on further provision in relation to the legal principles^[31] and also accepted that adequate provision had not been made to the plaintiffs.^[32]
123. [123]
     In her submissions, Yvette provided approximations of her assets, expenses and income, which is a disability pensioner payment:

124. [124]
     In relation to the benefits received by the defendant by living rent free at the property and by virtue of the fact that most expenses were paid by the deceased, I consider that such an arrangement is not unusual and should not be factored into the equation.  Neither do I consider that the amount that Yvette was ultimately able to borrow against the property should be considered as that is a debt she must repay.
125. [125]
     Yvette argues however that, although she owns a home which is in South Australia, she should not be disposed of that home.  She suggests that the estate should be divided such that she be provided with 70%, and that the applicants receive 30% of the estate between them, being 15% each.^[33]
126. [126]
     When one considers the financial circumstances of the three surviving children there is no doubt that at the time of the deceased’s death, they all had modest assets of roughly equivalent value with minimal incomes and similar expenses. 
127. [127]
     In my view a notional wise and just testator would have provided equally for his three surviving children.  Accordingly, the notional estate should be distributed equally amongst Wendy, Steven and Yvette taking into account the amount of $110,570 which Yvette has already received.  I will hear from the parties as to the appropriate form of the order and as to Costs. 
128. [128]
     My preliminary view is that whilst Yvette should pay the costs of the BS11852/20 proceedings, the costs of BS110872 should be borne by the estate.  I will however receive short written submissions by 4pm Tuesday 17 August 2021.

Order

129. [129]
     I will hear from the parties as to the form of the Order and as to Costs.