Several dubious family asset transfers prior to the death of a Maryborough octogenarian that favoured one daughter over her two siblings have been unwound by a Supreme Court in circumstances of undue influence.

Albert Wylie died in June 2018 – in his early 80’s due to multiple health issues and was survived by his children Wendy, Steven and Yvette.

Yvette moved into Albert’s home with her adult daughter Kelly in September 2017 to help with his care.

Yvette helped Wendy with his care until she made it impossible for Wendy to continue in the role.

In March 2018 – six months after moving in and 3 months before Albert died – Yvette was appointed Albert’s attorney for personal and health matters under an Enduring Power of Attorney.

By that time Yvette was Albert’s sole carer.

On 3 May 2018, one month before he died, Albert transferred a joint tenancy half share in his home to Yvette, the effect of which was to pass entire ownership of the property to Yvette on his death preventing it from going into his estate.

Five days later, Albert also changed his Will for the last time, appointing Yvette as his executor and leaving gifts of $5k and $10k to Steven and Wendy and everything else to Yvette other than a legacy to a friend.

When Albert died in June 2018 his estate consisted of just $75k as compared to $500k – including the home – 9 months earlier when Yvette moved in.

Wendy and Steven – dissatisfied with the benefits they had been left under the will – filed a lawsuit to overturn the transfer of the home to Yvette on the grounds of “undue influence” together with an application for further provision out of Albert’s estate.

Although filed in different courts the two matters were joined and heard together by Justice Ann Lyons in the Supreme Court in Brisbane in February 2021.

Wendy and Steven argued that Yvette had isolated their father and prevented others from having contact with him. Due to his failing health – so their case went – Albert was so completely reliant on Yvette’s care, that she was in a position of dominance over him.

A presumption of undue influence also arose – they asserted – under s 87 of the Powers of Attorney Act 1988 (Qld) because the home was transferred to Yvette when she was Albert’s attorney.

Justice Lyons accepted Yvette’s evidence that Albert had received legal advice in relation to the house transfer but held it did not meet the requisite standard. All the discussions Albert had with the solicitor were in Yvette’s presence and included advice given to both Albert and Yvette.

The advice could therefore not be said to be independent.

Her Honour also reasoned that the solicitor also ought to have advised Albert about whether the gift to Yvette was “right and proper” and should not have merely satisfied himself that the transfer was what Albert wanted to do.

With Yvette not displacing the undue influence presumption, the house transfer was ruled to be ineffective.

However as she had since mortgaged the property, Justice Lyons – unable to set it aside – declared Yvette to hold it on trust for the estate.

The court also agreed that Yvette – who was unable to adequately explain its purpose – had conducted a withdrawal of $40k from Albert’s account for her own benefit and had distributed $70k in the account to herself after obtaining Probate.

Should further provision be made for Wendy and Steven over and above the very modest cash gifts made for them in the will?

Yes, ruled the court.

In all seven prior wills made in the two and half years prior to his death, Albert demonstrated a clear intention that each of the children is provided for.

Wendy and Steven were each in a poor financial position and further provision – Justice Lyons concluded – should be made for them given they had a “strong moral claim” and had both been supportive of their father.

Her Honour ruled that Albert – as a “wise and just testator would have provided equally for his three surviving children” – and that the $470k estate (including the home held by Yvette on trust) should be shared equally by the three children.

Yvette was deemed to have already received $110k of her estate share, being the funds she had taken. She also remains responsible for the repayment of the loan she secured by a mortgage over the family home.

Yvette would in the ordinary course, also be required to pay the costs of the undue influence proceedings, but the estate would meet the costs of the application for further provision.

A tangled web of undue influence was able to be unwound.  The case demonstrates the value of robust legal advice to temper the risk of having transactions overturned, or – as in this case – to prevent inappropriate transactions from occurring.

Wylie & Anor v Wylie [2021] QSC 210 Lyons SJA 13 August 2021