Mace v Mace [2015] NSWSC 1659

Supreme Court New South Wales

Medium Neutral Citation: Mace v Mace [2015] NSWSC 1659 Hearing dates: 10 - 12 March and 12 June 2015 Date of orders: 12 November 2015 Decision date: 12 November 2015 Jurisdiction: Equity Before: Robb J Decision: 1. Order that the plaintiff's claim be dismissed.

2. Direct the parties to deliver to the associate to Robb J within 10 days written submissions concerning the order that should be made as to the costs of the proceedings.

3. Exhibits and documents produced to the court on subpoena may be returned forthwith in accordance with the Rules. Catchwords: EQUITY – undue influence – transfer of property by deceased to one of her two sons inter vivos – whether "special relationship" of influence – whether presumption that arises from relationship between parties has been rebutted – elderly mother and son – although relationship involved reliance, dependence and trust, this applied to both sons – deceased's intention to make gift was also manifested in a prior will – evidence that deceased attempted to be fair to both sons – deceased had made earlier substantial gifts to plaintiff, and loans that were not repaid – defendant maintained subject property out of own pocket – defendant purchased separate property for the deceased to reside in and provided her with a life estate in that property in his will – medical evidence supports conclusion that deceased was articulate, rational and capable – solicitor advised deceased concerning prudence of gift and acted for her on the transfer – evidence of solicitor accepted – solicitor acted relevantly in the interests of the deceased – gift was not so substantial or improvident so as not to be reasonably accounted for on ordinary motives on which ordinary persons act in the circumstances of this case – no evidence deceased's decision originated from anyone other than herself – no undue influence