Supreme Court New South Wales Medium Neutral Citation: Estate of the late Evert Jacob Bulder Evert Jan Bulder v Surya Kanta Evert Jan Bulder & Ors [2012] NSWSC 1328 Hearing dates: 16.10.12 Decision date: 01 November 2012 Before: Nicholas J Decision: Par 57 Catchwords: WILLS PROBATE AND ADMINISTRATION - informal document - whether suicide note constituted informal will - whether deceased had testamentary capacity when document made - whether deceased intended document to constitute will - whether document a valid will - whether plaintiff entitled to grant of letters of administration - turns on facts - no question of legal principle EQUITY AND TRUSTS - constructive trusts - deceased and defendant held joint bank accounts - whether deceased beneficially entitled to whole of monies in joint accounts - whether funds held on constructive trust for estate of deceased - whether payments by deceased to defendant procured by undue influence - turns on facts - no question of legal principle Legislation Cited: Succession Act 2006 Supreme Court Rules 1970 Cases Cited: Banks v Goodfellow (1870) LR 5 QB 549 Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113 Re The Estate of Cropley; Cropley v Cropley [2002] NSWSC 349; (2002) 11 BPR 20,171 The Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446 Tobin v Ezekiel [2012] NSWCA 285 Category: Principal judgment Parties: Estate of the late Evert Jacob Bulder - plaintiff (11/267687) Evert Jan Bulder - plaintiff (11/258747) Evert Jan Bulder - first plaintiff (11/130104) Tineke Trotter - second plaintiff (11/130104) Johan Bulder - third plaintiff (11/130104) Hilda Elisabeth De Boer - fourth plaintiff (11/130104) Surya Kanta - defendant Representation: Counsel: A Hill - plaintiffs No appearance - defendant Solicitors: 2020 Legal Solutions - plaintiffs No appearance - defendant File Number(s): 11/267687 11/258747 11/130104 Judgment 1In proceedings 11/267687 the plaintiff seeks a grant of letters of administration of the estate of his late father, Evert Jacob Bulder (the deceased) who died on about 14 April 2010 aged 84 years. He also seeks a declaration that the informal document dated "Maart 1910" (the Maart document) left by the deceased is not a will under s 8 Succession Act 2006 (the Act). Consent to the application has been given by the other children of the deceased. 2In separate proceedings (11/258747), by amended statement of claim filed 11 January 2012, the plaintiff claims declarations that money held in a bank account in the name of the deceased and the defendant, and money received by the defendant from the deceased, is held under a constructive trust on behalf of the estate, and consequential relief. These proceedings were commenced following the grant to the plaintiff on 23 August 2011 of special letters of administration ad litem. 3In further separate proceedings (11/130104) the plaintiffs seek an order for provision from the estate under s 59 of the Act, depending upon the outcome of the other proceedings. 4The defendant did not appear at the hearing. It was appropriate to proceed in her absence. The evidence contained in the affidavit sworn 11 October 2012 by Kevin Thomas O'Brien, the plaintiff's solicitor, enables me to find it is probable that the defendant had been served with the relevant process and informed of the dates fixed for hearing in this Court. She had been represented by a solicitor from the firm of Camden Haven's Local Lawyer from the commencement of these proceedings until a notice of ceasing to act was filed on 14 May 2012. Thereafter communications from Mr O'Brien were sent to the defendant's last known address in Port Macquarie, including his letter of 18 June 2012 advising of the hearing dates which was not returned. 5The hearing proceeded on the basis that the evidence in the administration suit and the evidence in the proceedings against the defendant be taken as evidence in the other. A brief summary of background circumstances is the following. 6The deceased committed suicide by hanging. His body was found by the defendant, his carer, at his home at Laurieton, New South Wales on 14 April 2010. His wife Elisabeth Anna Margaret Bulder, whom he married in 1952, died on 28 July 2008. Their four children are Hilda Elisabeth Bulder born 16 December 1952; Tineke Bulder born 27 December 1953; the plaintiff, born 10 July 1956; and Johan Bulder born 29 March 1963. The deceased had been an engineer by profession. 7In 2002 the defendant was employed by the deceased as a personal carer for his wife who suffered from dementia and Parkinson's disease. The defendant attended to her needs on a daily basis and, from early 2008, she also cared for the deceased. Thereafter until his death, the deceased was dependent upon the defendant for most aspects of daily living including transport, shopping, cleaning, and cooking. 8The Maart document is in the deceased's handwriting. Apparently it is a suicide note, and was found with other documents and letters in his home soon after he died. It is in the following terms: "MAART 1910 TO EVERT JAN AND JOHAN DEAR BOYS BEFORE I EVEN GET WORSE THEN I ALREADY AM, I DECIDED IT WAS TIME TO GO AS I WAS STILL ABLE TO DO IT. THERE WAS LITTLE SENSE IN CONTINUEING THIS EXISTENCE. I HOPE YOU WILL UNDER STAND. AS MY WRITING IS NOT GETTING ANY BETTER I WILL NOT MAKE IT TOO LONG TO SAY FAREWELL. LOOKING BACK ON MY LIFE FROM MY EARLY SCHOOLDAYS, THE GERMAN OCCUPATION AND AFTER THAT MY FOUR YEARS IN MILITARY SERVICE MAINLY IN INDONESIE WHEN I STARTED A CORRESPODNENCE WITH MY FUTURE WIFE (YOUR MOTHER) THEN AFTER OUR MARRIAGE A SIX YEAR STAY IN VENEZUELA WHERE EVERT JAN WAS BORN. THEN A TWO YEAR STAY IN THE NETHERLANDS OUR DEPARTURE TO AUSTRALIA. IT WAS QUITE A LIFE AND WORLDWIDE THINGS ARE NOT IMPROVING. PEOPLE WILL NEVER LEARN FOR ME ENOUGH IS ENOUGH. WISHING YOU AND YOUR FAMILIES THE BEST FOR THE FUTURE. LOVE DAD HUMANITY IS A CRAZE AND THE HUMAN IS THE MOST CRUEL AND DISTRUCTIVE CREATURE IN THE WORLD. THERFORE I WOULD LIKE TO LEAVE MY WORDLY POSSESSIONS TO THE PROTECTION OF THE ANIMALS IN THE WILD ESPECIALY THE ENDANGERED SPECIES LIKE THE ORANGUTAN, MOUNTAIN GORILLA, BLUE WHALE, ASIATIC LION, BENGAL TIGER AND MANY MORE. TO THIS END I LEFT A FEW CHEQUES ENCLOSED FOR SOME OF THE ORGANISATIONS INVOLVED IN WILDLIFE CONSERVATION FOR EXAMPLE GREENPEASE, HUMANE SOCIETY INTERNATIONAL, FOUNDATION BRIGITTE BARDOT ETC. YOU MIGHT THINK OF ANY OTHERONES (WORLD WILDLIFE FUND). I LEAVE YOU A CHEQUE FOR $10,000 COVERING FUNERAL AND ANY OTHER COSTS. I FOUND SOME TRAVELER CHEQUES IN THE NAME OF ELISABETH BULDER. TRY TO EXCHANGE THEM IN THE COMMONWEALTH BANK. PLEASE BE GOOD TO SURIYA. SHE HAS BEEN A WONDERFUL FRIEND, HELPER AND CARER FOR THE PAST TEN YEARS FOR YOUR MOTHER AND ME. ALL THE BEST FOR YOU TWO - DAD" 9The deceased's property has an estimated value of $365,437.38 which includes shares in the amount of $5,069.70, and cash on deposit in various accounts with the Commonwealth Bank of Australia in the amount of about $276,000. The application for letters of administration (11/267687) 10On 13 July 2011 notification under Supreme Court Rules 1970 Pt 78, r 34E was given to each of the defendant, Greenpeace Australia, Humane Society International, and Foundation Bridgette Bardot, and on 24 April 2012 to WWF Australia, as affected persons. Foundation Bridgette Bardot provided consent on 25 October 2011. No other consents were returned. 11The plaintiff's evidence was that the deceased had no de facto spouse, and that he left no will. He is entitled to a grant of letters of administration of the deceased's estate. 12The principal issues are whether the deceased had testamentary capacity at the time he made the Maart document, and whether the deceased intended the document to constitute his will. If the document is admitted to probate the plaintiff seeks an order for provision out of the deceased's estate in proceedings 11/130104. 13Relevantly s 8 of the Act provides: "8 When may the Court dispense with the requirements for execution, alteration or revocation of wills? (1) This section applies to a document, or part of a document, that: (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms: (a) the deceased person's will-if the Court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased person's will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will. (3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to: (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2). ..." 14With respect to the operation of s 8 of the Act the authorities say that once a document is shown to exist, two factors are a crucial to its operation. First, as to the objectively discerned nature of its content, does it purport to state the testamentary intentions of a deceased person, and second, as to the deceased's intentions as to its status and operation i.e. did the deceased intend the document, or part of it, to operate as a will, or as an alteration to it, or as a full or partial revocation of it. Affirmative answers to both questions are necessary for the result that the document operate as an amendment of the will (Re The Estate of Cropley; Cropley v Cropley [2002] NSWSC 349; (2002) 11 BPR 20,171 at par 20). 15In The Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446 Kirby P, with reference to s 18A Wills Probate and Administration Act 1898 said (p 452): "Yet by the requirement that the document which, by definition embodies the testamentary intentions of a deceased person, should be described as constituting "his or her will", the legislature plainly drew a distinction between those documents of testamentary intentions which constituted the deceased's will and those which did not." and Mahoney JA said (p 455): "...the document must state the deceased's "testamentary intentions", that is, his wishes or intentions as to how, voluntarily, his property is to pass or be disposed of after his death. ... it is the disposition of the deceased's property voluntarily after his death which is, for present purposes, the relevant characteristic of a will." and Priestley JA said (p 466): "Powell J stated that in the application of this section the questions arising are essentially questions of fact, the particular questions of fact being whether there is a document, whether that document purports to record the testamentary intentions of the deceased and whether it was the intention of the deceased that the document should operate as his or her will. This seems to me to be an appropriate way of understanding the section." 16Thus, for a document to constitute a will it is necessary that it, in terms, sufficiently evidences the fact that by it the deceased intended to govern the disposition of his or her property after death. By s 8(4) of the Act the Court may have regard to extrinsic evidence in deciding the question. 17Demonstration of testamentary capacity requires proof that the testator knew and approved the contents of the will at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing (Tobin v Ezekiel [2012] NSWCA 285, par 44). The test for testamentary capacity was stated by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at p 565: "It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made." 18Taken overall, the evidence establishes the steady deterioration in the health of the deceased from the time his wife was diagnosed with Parkinson's disease in about 1990 until the time of his death. The evidence of Mrs Trotter (affs 08.07.11, 22.02.12) describes the extent of care she provided for both her parents out of concern for their health and welfare. This included arranging for their accommodation at a retirement village or nursing home at Laurieton, and lending them $120,000 for this purpose. Her relationship at the time with both parents was close, with frequent contact and visits. The deceased apparently entrusted her with his affairs. In due course, Mrs Trotter observed that the deceased had become unable to provide consistent and suitable care for her mother. On one of her visits she noticed the poor state of her mother's hygiene and presentation, and suggested to the deceased that she be considered for full time care in a nursing home. He reacted with rage, slapped her across the face, hit her and kicked her when she fell. 19On 12 November 2001 Mrs Trotter, supported by her siblings, applied to the Guardianship Tribunal for the appointment of a guardian for Mrs Bulder, then aged 73. On 16 November 2001 the Public Guardian was appointed, it having been found by the Tribunal that Mrs Bulder was under a disability and partially incapable of managing her person. The application was opposed by the deceased who asserted he was able to look after his wife. The effect of the order was for Mrs Bulder to remain in full time professional care at the Lakeside Nursing Home. The order was confirmed on 17 January 2002. Mrs Trotter had informed the Tribunal that she did not believe the deceased was able to provide care on a full time basis, and that he lacked insight into Mrs Bulder's condition and would not accept that she had substantially deteriorated. Although the deceased had frequent contact with his wife, the Tribunal did not accept that he could adequately meet her needs. 20On 13 March 2003 the Tribunal, supported by Mrs Trotter but opposed by the deceased, continued the guardianship order. The deceased responded by letter of 9 April 2003 to the Deputy President of the Tribunal. The letter included the following: "Thank you for your contribution in ruining the lives of two elderly people who have been married for more then [sic] fifty (50) years ... How is it possible that in a so called civilised society one unscrupulous, malicious daughter ... can succeed in manipulating the system and making the last years of her parents' life as unpleasant and unhappy as possible with the full cooperation of the Tribunal? Why are we persecuted as criminals for the 'crime' of wanting to stay together for as long as humanly possible? Is it a criminal offence to be over 70 years of age with quite a few health problems ... Why does the Tribunal let itself wide open to manipulation ... and as a result base their judgment on probable false information and lies? Why is the system completely biased against the elderly? ... Undoubtedly you will find out in years to come that growing old especially when one of the party is inflickted [sic] with a horrible disease is hard enough even without being harassed and persecuted by a bunch of unfeeling bureaucrats." 21A short time later the deceased removed Mrs Bulder from the nursing home to live in the Netherlands. They returned to Australia in December 2004, and Mrs Bulder was readmitted to the Queens Lake Retirement Village high care facility. To this situation the deceased's reaction was one of continuing anger and unhappiness. He ceased speaking to Mrs Trotter. 22There was evidence of several incidents of violent and irrational behaviour on the part of the deceased. Mrs Trotter described an occasion in early 2006 when she observed heavy bruising to her mother's face, apparently suffered at the hands of the deceased. In June 2007 the deceased physically assaulted the plaintiff, was agitated, and made irrational remarks about the family when the plaintiff visited his parents at the village. The deceased reported an assault to the Laurieton Police, and requested that an apprehended violence order be issued against the plaintiff. 23Upon the death of Mrs Bulder on 28 July 2008, the deceased attempted suicide by an overdose of sleeping pills. He fell, broke an arm, and was hospitalised for several weeks. He declined to attend the funeral. Afterwards the plaintiff and his brother, Johan, assisted him in outstanding accounts. The plaintiff considered the deceased had become unable to manage his finances but would not admit to this. He believed the deceased never recovered from the loss of his wife. From this time until he died the deceased took the anti-depressant medication "Mirtazapine". 24The defendant was employed by the deceased in January 2002, initially to care for Mrs Bulder. She became his personal carer in early 2008 upon whom he was dependent for most of his daily living requirements. 25The plaintiff maintained regular telephone contact with the deceased. On 11 March 2010 there was a lengthy discussion in which the deceased's mood seemed good. 26On 14 March 2010 the defendant forged the deceased's signature on the notice of disposal form to facilitate the transfer of his motor vehicle to her. 27On 16 March 2010 the deceased drew a cheque payable to the defendant for $3,000, and on 18 March 2010, drew a cheque payable to her for $1,000. 28On 18 March 2010 the deceased telephoned the plaintiff and sounded extremely distressed, agitated, tearful and irrational. He said: "Why don't you believe that I loved and cared for Mum? We had the perfect relationship. Why has everyone turned against me?" 29On 30 March 2010 the plaintiff telephoned the deceased. During a lengthy conversation the deceased complained that the defendant had abandoned him, had taken his car, and had left him alone without food in the house and access to medical treatment. He agreed to contact the retirement village for assistance. 30According to the plaintiff the date "Maart 1910" on the Maart document is a mixture of Dutch and English which indicates that the document was written either on an unspecified date in March 2010 or on 19 March 2010. I accept this as a likely explanation. 31On 14 April 2010 other papers were found by Police in a black bag at the deceased's home in addition to the Maart document. These included cheques payable to Greenpeace, Foundation Brigitte [sic] Bardot, and Humane Society International each dated 20 March 2010 for the amount of $75,000. There was also a note, undated, headed "INSTRUCTIONS" apparently intended for the defendant. It included the following: "For the immediate future you will find some cash in the top right hand drawer I think it is $1,300 for probable incoming bills. Further a cheque for $3,000 for the transfer of the car in your name and some for yourself. Don't forget your account with the ABN [sic] Bank. You need a certificate of death to get access." 32Another note, dated 12 April 2010, was a letter from the deceased to the plaintiff. Its purpose was to remind him to take care of the ashes of his mother and of the deceased on a trip to the Netherlands. It said: "Communication was never a strong point of me [sic], but be sure that this last wish of me to have our ashes joined is of great importance to me and I am sure of Mum too." 33The Coroner's report of 5 July 2010 dispensing with an inquest included a finding that the deceased suffered from depression. 34In his report of 17 February 2012, Dr Julian Parmegiani, consultant psychiatrist, addressed the issue of the deceased's testamentary capacity. It is unnecessary to recite the detail. He took into account evidence as to the deceased's relationship with his children, his capacity to manage his affairs, and the circumstances of his death. With regard to the Maart document, Dr Parmegiani's view was that the deceased's understanding of the nature of the act and its effects was incomplete, and indicative of confusion. With regard to the facts that the defendant had, by the time of his death taken a significant amount of money from the deceased and forged the transfer of his vehicle, he thought it unlikely the deceased had an accurate understanding of the extent of his property absent evidence that he was aware that the money was owed to his estate, or that the car had been taken. 35Dr Parmegiani considered the act of suicide strongly indicated the deceased was not thinking or acting rationally at the time, and that the writing of an incorrect date "1910" indicated the possibility of confusion. He thought that the statement: "Humanity is a craze and the human is the most cruel and distructive [sic] creature in the world" suggested depression. 36The report concluded with the following: "Jacob's relationship with his children deteriorated over the years, because of his poor judgement. He was unable to accept that his children were acting in their mother and father's interest. There was no evidence that Jacob suffered from psychotic illness. There was no evidence that he experienced visual or auditory hallucinations or other irrational ideas. His declining cognitive function, however, impaired his capacity to process information. A delusion is defined as a fixed and false idiosyncratic belief. In essence, a delusion cannot be corrected by conflicting information. On balance, Jacob suffered a delusional belief that his children, particularly his daughter Tineke, were cruel and manipulative. ... ... From a psychiatric perspective, Jacob was significantly depressed, unable to manage his finances, and unable to process information. He could not properly evaluate his children's [sic] motives in their efforts to assist him, and this influenced his attitude towards them." 37I find that Dr Parmegiani's opinion is amply supported by the evidence as to the deceased's circumstances for at least the decade prior to his death. I find that, probably, from the times of the proceedings before the Guardianship Tribunal the deceased's depression steadily deepened, and was doubtless exacerbated by the delusion that his children had turned against him, particularly on matters concerning the care of their mother, his wife. In my opinion the failure to make provision for any of his children is only explicable by a delusion of this kind. I am satisfied that the wish expressed in the Maart document that the deceased's worldly possessions be left for the protection of wild animals in the context of his rejection of humans as the most cruel and destructive creatures in the world supports the inference that he was unable to comprehend and appreciate the claims to which he ought to have given effect, namely, those of his children. I accept the opinion of Dr Parmegiani in support of the finding, which I make, that from at least the time the Maart document was written until his death the deceased lacked testamentary capacity. 38Accordingly, I propose to declare that the Maart document is not a valid testamentary instrument, and hence, is not the deceased's will under s 8 of the Act. 39In light of this conclusion it is unnecessary to deal with the questions whether the document purports to record the testamentary intention of the deceased, and whether it was his intention that it should operate as his will. Nevertheless, it is appropriate to briefly set out the reasons for my opinion that these questions must be answered in the negative. 40In my opinion, taken as a whole, the document cannot reasonably be understood as stating the testamentary intention of the deceased so as to attract the application of s 8 of the Act. It is self evident that its form and contents provide no indication that it was intended to operate as a will. It is in the form of a letter addressed to the sons of the deceased. It is in two parts. The first consists of the passage commencing "Dear Boys" and ending "Wishing you and your families the best for the future, Love Dad". The second consists of the remainder, signed off with the words "All the best for you two, Dad". It is reasonable to understand the first part as containing words of farewell, and the second part as containing requests to the sons with regard to some of the deceased's property, and to the defendant. Furthermore, in my opinion, the second part is couched in language which is precatory and not dispositive. The phrase "... I would like to leave my worldly possessions" expresses a wish or preference to be performed by his sons. The object(s) or contemplated recipients are described in terms which are imprecise, wide, and vague. The means of performance or implementation is apparently left to the discretion of the sons. The statement "... to this end I left a few cheques for some of the organisations involved in wildlife conservation for example Greenpease [sic], Humane Society International, Foundation Brigitte [sic] Bardot etc you might think of any other ones (World Wildlife Fund)" should be understood as a suggestion of the kind of bodies which the sons were asked to consider. 41Support for the conclusion that the Maart document was not intended to dispose of all of the deceased's property is provided by the undated note left for the defendant in which he purported to give instructions for the expenditure of some of his money. 42Accordingly in proceedings 11/267687 I propose to order that the plaintiff be granted letters of administration on intestacy of the estate of the deceased, and that the administration bond be dispensed with. The claims against the defendant (11/258747) 43The relief claimed in pars 4 and 5 of the amended statement of claim was in respect of a motor vehicle owned by the deceased and taken by the defendant on about 14 March 2010. As the vehicle has been recovered and is now held on behalf of the estate, these claims were not pressed. 44The plaintiff seeks a declaration that the funds in the National Australia Bank (NAB) classic banking account and term deposit account in the names of the deceased and the defendant are held on a constructive trust for the estate of the deceased, and belong to the estate. He also seeks orders that the defendant account for all funds received by her from the deceased between 20 December 2004 and 14 April 2011, and for all funds received by her from the estate of the deceased between 15 April 2011 to date. 45The account in respect of which the claims are made are joint accounts in the names of the defendant and the deceased with two to sign. One was a NAB concession card account BSB ### ### account number ## ### #### with a balance at date of death of $27,313.14. On 15 March 2010 the name of this account was changed to NAB classic banking. The other account was a term deposit number ## ### #### with a balance at date of death of $101,190.91. 46The funds held in the term deposit account were funds of the deceased, being part of monies received by him as a distribution of a legacy to Mrs Bulder under her late mother's estate. The evidence was that on 6 August 2009 the deceased received by way of international transfer the sum of $133,502.99 which was credited to the concession card account. On 13 August 2009 the amount of $100,000 was withdrawn from that account to establish the term deposit account. 47The statements show that between 14 October 2009 and 22 March 2010 a total amount of $11,200 was withdrawn from the concession card and classic banking account which left the closing balance at date of death in the amount of $27,313.14. The withdrawals were through automatic teller machines in Port Macquarie with the exception of those on 18 March and 22 March 2010, which were through similar machines at Liverpool and Cabramatta respectively. Absent evidence to the contrary, I find it highly probable that the defendant withdrew these monies for her own use. 48On 11 February 2009 the deceased drew a cheque on his account with Commonwealth Bank of Australia, Laurieton, payable to "NAB Bank" in the amount of $5,000, which amount was deposited in the concession card account then only in the name of the defendant. The resulting credit balance was the amount of $5,010. This balance remained the same until the amount of $133,502.99 was deposited on 6 August 2009, by which time the deceased had become a joint holder and signatory of the account. Thereafter no further deposits were made to the credit of this account. 49The evidence supports the finding, which I make, that the deceased at all times was beneficially entitled to the whole of the monies in the classic banking account and in the term deposit account. The funds in each case were provided only by him, and there is no evidence which might suggest that the defendant has any claim to them. Accordingly, the plaintiff is entitled to declarations that the funds held in the classic bank account and in the term deposit account, each in the names of the deceased and the defendant, are held on a constructive trust for the estate of the deceased, and are the property of the estate. 50With respect to the various payments made by the deceased to the defendant by cheque during the periods 24 December 2004 to 27 September 2007, and 30 January 2008 to 18 March 2010 the plaintiff claims they were procured by undue influence exercised by the defendant over the deceased. 51At all relevant times, and for many years prior to his death, the deceased usually operated a cheque account in his name with Commonwealth Bank of Australia, Laurieton BSB ### ### account number #### ####. It was from this account that he drew cheques payable to the defendant during the period 24 December 2004 to 27 September 2007 for the total amount of $7,800 as pleaded in par 10 of the amended statement of claim, and for the period between 30 January 2008 to 18 March 2010 for the total amount of $41,800 as pleaded in par 16 of the amended statement of claim. The cheque butts show that the defendant was the payee, but in most cases there was no record of the item for which the cheque was drawn. 52The relationship between the deceased and the defendant is earlier referred to. Although initially employed in January 2002 to care for Mrs Bulder, she acted as the deceased's personal carer, and attended upon him almost daily from early 2008. The deceased became dependent upon her for most aspects of his daily living, for which she was paid with a carer's pension from Centrelink. His state of depression steadily deepened during the time of the defendant's employment, which is exemplified by his reaction to the Guardianship orders, and the attempted suicide after the death of his wife. 53The evidence leaves me in no doubt that the defendant was well aware of the vulnerability of the deceased, and deliberately attempted to exploit it for her own advantage. That she achieved a degree of control over the deceased is to be inferred from his becoming a joint holder of the concession card account into which Mrs Bulder's legacy was paid, but to which she made no contribution, yet the statements were addressed only to her. Her predatory tendency is further illustrated by her taking of the deceased's motor vehicle, forging his signature on the notice of disposal, and attempting to sell it on her own account. 54As earlier noted, the payments complained of are unexplained. Taken overall, I am satisfied the evidence established that at all material times, particularly since the proceedings before the Guardianship Tribunal, the relationship between the deceased and the defendant was one of reliance, dependence and trust on the part of the deceased which resulted in a psychological ascendancy on the part of the defendant. I am also satisfied that, absent explanation, the amount and frequency of the payments were not such as to be reasonably accounted for by reason of their relationship or otherwise. In my opinion these payments were transactions of the kind which, unless justified by the defendant, enliven the suspicion that they were the product of influence unduly exercised by the defendant upon the deceased. 55In my opinion, it follows that the relationship was one which obliged the defendant to demonstrate that which is peculiarly within her knowledge, namely, that the benefits or payment she received were not the product of the ascendancy, trust or confidence arising out of the relationship (Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113). In this case, of course, the defendant ultimately declined to contest the plaintiff's claims. This being the case, I find that the payments were transactions unconscionably procured by the exercise of undue influence. For the above reasons, the payments to the defendant by the deceased during the relevant periods should be set aside. The defendant must account to the deceased's estate for the monies received by her from him as claimed. The claim for provision (11/130104) 56Having regard to the outcome of the other proceedings, I understand the plaintiffs do not wish to proceed with the claim for provision under s 59 of the Act. Accordingly, I propose that those proceedings be dismissed. Conclusion 57The plaintiff is directed to bring in short minutes to give effect to the conclusions to which I have come. The issue of costs in the several proceedings remains outstanding and is yet to be addressed by the plaintiff. 58The plaintiff should arrange with my associate by 4pm 8 November 2012 to re-list the matter for the purpose of finalising the matters. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2012