Johnson v Buttress [1936] HCA 41

4 fin ee. les vANZ 7 = Lid (in i ang» 64 [1990] 2QaR. "dy, Re '10 Filmer: 35) fie e fea 4 :

56 C.L.R.] OF AUSTRALIA. 113

. {HIGH COURT OF AUSTRALIA.}

JOHNSON. a 5 ' , t: 2 . APPELLANT ; DEFENDANT, AND BUTTRESS . " é E 2 : s . Respondent. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Gift—Fiduciary relationship—Undue influence—Presumption—Rebuttal.

Wherever the relation between donor and donee is such that the latter is in 7, (, or A. a position to exercise dominion over the former by reason of the trust and 1936, confidence reposed in the latter, the presumption of undue influence is raised. To rebut the presumption it must be affirmatively shown by the donee that gypyzy, the gift was the pure, voluntary, well-understood act of the mind of the donor. April 8, 16;

'Aug. V7." A man sixty-seven years of age, who was wholly illiterate, of low intelligence "7 i i i i ii i a Lathe od., and quite devoid of any capacity for, or experience in, business affairs, Jatham OJ. was habitually dependent on others for advice and assistance. After the ,,Pvatt and

McTiernan JJ. death of his wife he transferred to a relative of his wife a piece of land on which his home was erected and which was substantially his only asset. The transfer was executed in the office of the donee's solicitor, and was expressed to be for natural love and affection. The donor did not have any independent advice concerning the transfer, but it was shown that he was appreciative of kindnesses shown from time to time by the donee to his wife and to himself. At the suit of the donor's son the transfer was set aside as having been made

under the undue influence of the donee.

Held that an appeal from this decision must be dismissed :— By Latham C.J., Dizon, Evatt and McTiernan JJ., because a special relation- ship of influence was shown by the circumstances to have arisen between the donee and the donor and the presumption of undue influence which arose from - the relationship had not been rebutted. VOL. LVI. 8