A Queen St solicitor who belatedly produced an electronic copy of an unwitnessed declaration of trust to support his claim he was the beneficial owner of his deceased mother’s home, has been accused his sister of forgery.
Following the death of her husband the year before, Sybil Churven took up residence at the Taringa unit in 1992 before the settlement of the sale of her family residence at Chapel Hill.
She moved into a New Farm nursing home in 2014 and died in August 2019 – aged 96 – due to complications from the flu and dementia.
Her last will of March 2008 left son Philip her household contents and personal effects. The balance of her estate – which appeared to be comprised by the $280k nursing home accommodation bond and the Taringa unit – was left to daughter Pamela, a Brisbane barrister.
Philip’s appointment as sole executor was overturned by the Supreme Court in February 2020 with Pamela installed in the role.
At contest when the dispute came before Justice Martin Burns in October 2020 and September 2021 was the ownership of the beneficial interest in the Swann Road condo, which Philip claimed as his.
An express trust had been created – he claimed – by the declaration his mother had signed at the time the unit was purchased with him providing its funding in full.
Alternatively, he contended that a “resulting” trust had been created by reason he had paid the $230k purchase price and stamp duty so the proceeds of sale of Chapel Hill could be invested to cover Sybil’s living expenses.
Philip – who could only produce a copy of an unwitnessed version of the signed document – was met with the allegations that the copy was forged and his testimony was fabricated .
Further claims of undue influence, conflict of interest and unconscionable conduct were also levelled by his sister against him.
Pamela’s suspicion had been aroused by the “relatively late revelation” of the copy of the document and Phillip’s “rather convoluted account” as to its provenance.
Justice Burns noted however there was no requirement for such a declaration to be witnessed nor did it need to take any particular form as long as it was in writing and signed by a person “who is able to declare such trust”.
Neither was it surprising in his view – that given the passage of almost 30 years – the conveyancing file had long been since been destroyed.
So concerned the copy was fake, Pamela engaged BDO’s Michael Tarnaswky to conduct a forensic examination and Vincents’ Dan Hains to report on the means of generation of the digital copy.
Because their evidence did not materially differ from that of John Heath – Philip’s document examiner – and because the was impressed with Philip’s explanatory evidence, Justice Burns had no hesitation in ruling the copy of the deed to be authentic.
“I have no hesitation accepting Mr Churven’s evidence [which] is largely confirmed by the terms of the copy Deed which I am satisfied is genuine”.
Another source of Pamela’s suspicion was her mother’s own comments that had been inconsistent to the notion of her brother’s beneficial ownership.
“Although Mrs Churven may well have said different things to different people over time regarding ownership of the unit,” His Honour considered, “I am unpersuaded that any reliance can be placed on those statements”.
And although Philip’s credit was called into question by reference to findings made in past litigation about other things, Justice Burns was in no doubt about his veracity.
Why though did Philip buy the Taringa unit from his own funds when the sale of the Chapel Hill home would likely have been an adequate source for payment of the purchase price?
Philip had – he swore – offered to buy the units so that the Chapel Hill sale proceeds could be invested and used for Sybil’s living expenses.
To verify those proceeds weren’t available for the Taringa settlement, he was required to call evidence from legendary property law practitioner Bill Purcell who examined what documents could be unearthed regarding the two transactions.
Purcell concluded from titles office records and other available documents that – according to usual conveyancing practice – the unit purchase settlement had occurred prior to that of the sale of the Chapel Hill home.
His support of Phillip’s account was sufficient to establish to His Honour’s satisfaction that Sybil had not had “the means to purchase a unit at the time”.
Given those findings, Pamela’s other allegations of undue influence, unconscionable conduct, breach of fiduciary duty and conflict of interest were likewise dismissed as having no merit.
Thus Philip – who is also a commercial property tycoon – was granted title to the unit which according to real estate.com has a current value range of up to $650k.
Pamela agreed – on being satisfied that Philip had paid the accommodation bond – that it was a debt due to him from the estate.
An order was made revoking Pamela’s grant of letters of administration and re-granting the appointment to Philip. It was further ordered that Pamela not drawdown her legal costs from the estate.
McGhee v Churven; Churven v McGhee [2021] QSC 212 Burns J, published 5 November 2021