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 EQUITY – unconscionable conduct – deceased acted in accordance with her own wishes – deceased was capable, mentally acute and rational – dealt fairly with both her sons – no unconscionable conduct Cases Cited: Courtney v Powell [2012] NSWSC 460 Category: Principal judgment Parties: Brett Ronald Mace (plaintiff) Glenn Rodney Mace (defendant) Representation: Counsel: C A Vindin (plaintiff) M Lawson (defendant) Solicitors: Heckenberg Lawyers (plaintiff) Smith Lawyers (defendant) File Number(s): 2013/184170 Publication restriction: None Judgment Introduction 1. The issue in this case is whether the court should set aside a transfer made by Mrs Marjorie Rose Mace (Mrs Mace) on 18 June 2009 of the property at 21 Saric Avenue, Georges Hall (the Property) to her son, Mr Glenn Rodney Mace, who is the defendant in these proceedings. 2. The plaintiff, who challenges the transfer, is Mr Brett Ronald Mace, who is Mrs Mace's other son. Both Brett and Glenn Mace were adopted by Mrs Mace and her late husband. 3. Mrs Mace was born in 1931 and died on 18 February 2011. 4. Mrs Mace and her husband, Ronald Mace, purchased the Property in about 1970. It became the family home. Mr Ronald Mace died on 11 November 1984. Mrs Mace became the sole owner of the Property by survivorship. 5. In about 1986, when he was aged about 25, Brett Mace moved out of home into a house that he purchased with some financial assistance from Mrs Mace. I will return to the relevance of this financial assistance later. 6. Glenn Mace, then aged about 27, continued to live in the Property. Between 1989 and 1992, a friend of Glenn Mace, Mr Michael Gibbons, moved into the Property and lived with Glenn and Mrs Mace. 7. Glenn Mace married Anna on 10 February 1996. There is a conflict in the evidence as to whether Glenn Mace continued to live in the Property with Anna and their son Damian, who had been born in 1995, as Brett Mace contends, or whether Glenn Mace stayed a number of nights per week with Anna and Damian at Anna's house in Bankstown, as Glenn Mace contends. 8. In about January 1998, Glenn Mace purchased a villa at 3/38 Mons Avenue, Condell Park (the Villa). Mrs Mace moved into the Villa at about that time and lived there until about May or June 2010 when, after a fall, Mrs Mace moved out of the Villa into the Gillawarna Village, an aged care facility. 9. Glenn Mace, Anna and Damian continued to live in the Property as their home. Glen took responsibility for, and paid for, the upkeep of the Property. 10. On 18 June 2009, Mrs Mace transferred title to the Property to Glenn Mace for no consideration. 11. A solicitor, Ms Belinda Joanne Soszyn, advised Mrs Mace and acted for her on the transfer, and the preparation of her final will. There is an issue as to whether Ms Soszyn acted for Mrs Mace alone, or for Glenn Mace as well. Mrs Mace's wills 1. Mrs Mace made a will on 24 July 1986. She appointed Brett and Glenn Mace as her executors and trustees. By cl 4, she gave the whole of her estate to Brett and Glenn in equal shares. Mrs Mace noted that she and her late husband had two foster daughters; that those foster daughters had been "given a great deal of financial support"; and that she had made her will "specifically declaring that I do not wish any further part of my estate to be given to either of my foster daughters". 2. At this stage, Mrs Mace clearly intended to provide equally for her two adopted sons. 3. The terms of the will show that, even as early as 1986, Mrs Mace turned her mind to the call that her adoptive and foster children had on her bounty, having regard to the provisions that she and Mr Mace had already made in the children's favour during their lives. 4. Mrs Mace made a new will on 23 August 2000. She appointed Brett Mace as her sole executor and trustee, but if he predeceased her or was unwilling or unable to act, then she appointed Glenn Mace in his stead. After making a number of specific gifts of her personal possessions, Mrs Mace made the following gift by cl 7: PROVIDED my son GLENN RODNEY MACE survives me by thirty (30) days I GIVE to my trustee my property 21 Saric Avenue, Georges Hall UPON TRUST to permit my said son to have the use and occupation and enjoyment thereof during his life he paying all rates and taxes and other outgoings thereon and keeping the same in a good and habitable state of repair, wear and tear and damage by fire lightning flood and tempest excepted, and keeping the same insured against fire and otherwise to the satisfaction of my trustee AND I EMPOWER my trustee at the request of the said GLENN RODNEY MACE to sell the said residence and to employ the proceeds of such sale in the purchase or erection of another residence to be held upon the same trusts including the trust for sale and erection or re-purchase as are herein declared in respect of the original residence and on the death of the said GLEN RODNEY MACE or should he in the opinion of my trustee cease to reside permanently in the residence or to comply with the conditions of his right of occupation or should he notify my trustee in writing of his express intention to cease to reside permanently in the residence or should he fail to survive me by the said period of Thirty (30) days then I GIVE the said property to such of my grandsons SHANE RONALD MACE and DAMIAN RONALD MACE who survive me by thirty (30) days and attain the age of twenty-five (25) years and if more than one as tenants in common in equal shares. 1. By cl 8 of her will, Mrs Mace in effect gave her residuary estate to her two foster daughters and two adoptive sons in equal shares. 2. The terms of cl 7 show that, as early as 23 August 2000, Mrs Mace had decided that Brett Mace should not receive any share in the Property upon her death. 3. It appears that on 2 January 2003, Mrs Mace made an alteration by hand to her 24 July 1986 will. Immediately following cl 4, by which she had given the whole of her estate equally to Brett and Glenn Mace, she wrote the following: 21 Saric Av to be Glenn's he has lived there for yrs & I would not of had it but for him paying the bills, everything else between the boys. 1. Mrs Mace appears to have written in the left-hand margin: "2.1.2003. The will as is. [Sgd M Mace]". 2. Although this alteration to Mrs Mace's first will has not been given any testamentary effect, it does provide some evidence that, as at 2 January 2003, Mrs Mace had formed the intent that Glenn Mace should receive the Property upon her death. 3. Ms Mace's final will was executed on 6 July 2009. It gave the residue of Mrs Mace's estate to her two adoptive sons and two foster daughters in equal shares. As I understand it, Mrs Mace retained little property of value after she had transferred the title to the Property to Glenn Mace. Mrs Mace's testamentary statement 1. On 6 July 2009, Mrs Mace signed a testamentary statement that was prepared and witnessed by Ms Soszyn. It will be appropriate to set out the statement in so far as it refers to Glenn and Brett in full, and omit the content concerning Mrs Mace's two foster daughters: I Marjorie Rose Mace have made my last Will and Testament on 6 July 2009. In my Will I have divided whatever assets and funds I have as at the date of my death amongst those of my children Glenn Rodney Mace, Brett Ronald Mace, Denise Crilley and Margaret Mace who survive me. I have made several substantial gifts to my children prior to the making of my last Will. GLENN RODNEY MACE On 18 June 2009 I transferred my interest in my principal place of residence located at 21 Saric Ave, Georges Hall to my adopted son Glenn Rodney Mace. Glenn has used his own funds to repair and maintain 21 Saric Avenue Georges Hall. He has paid for all insurances and bills relating to the home. He has worked tirelessly to keep the home in good repair. Any work on my home that was undertaken by licensed tradesmen was supervised by and paid for by Glenn. Glenn has also taken me to doctors appointments, taken me shopping, run errands for me and ensured that all my needs have been met. He is the only one of my children to have helped me in every way he possibly could. For this reason I have transferred my interest in my property at 21 Saric Avenue Georges Hall to him. Glenn has paid all stamp duties associated with the transfer. BRETT RONALD MACE In 1987 my adopted son Brett purchased a property located at 22 Thorp Rd, Woronora for the sum of $100,000. I gave Brett the sum of $70,000 toward the purchase of that home. I also asked Brett to hold a further sum of $70,000 in a bank account for me but to date those funds have not been returned to me. I also gave Brett the sum of $20,000 in order to start a business known to this day as Ad Glass Pty Ltd located at Caringbah. These funds were loaned to Brett but he has failed or omitted to repay this loan to this day. … (a) I believe I have made adequate provision for all my children during my lifetime. Benefits conferred on Brett Mace by Mrs Mace 1. As will be seen, Mrs Mace repeated the information that she included in her testamentary statement concerning the benefits that she conferred on Brett Mace during her lifetime, when she gave instructions to her solicitor, Ms Belinda Soszyn, to act on the transfer of the Property to Glenn Mace, and to prepare her final will. 2. In his 24 April 2014 affidavit in reply, Brett Mace gave evidence to explain Mrs Mace's statements concerning the benefits that she conferred on him during her lifetime. He said in relation to the purchase of his first home at Woronora that his mother advanced him the sum of $30,000. He denied that Mrs Mace loaned him $70,000. He said that she later declined to accept any repayment and told him to regard the $30,000 as a gift. He also denied that he was holding a further $70,000 or any other sum for his mother, which he did not return. He denied that he was loaned approximately $20,000 in the early 1990s. He said that the only money that he held for Mrs Mace was $50,000, which he deposited in a Commonwealth Bank Term Deposit in about 1992 at her request. He said that over the next few years he withdrew money from the term deposit and paid to his mother $20,000 in two, three or four tranches. The balance of the $30,000 remained on deposit until about 1993. He said that Mrs Mace directed him to use that money in a business that he would begin operating, called Asia Pacific Glass Pty Limited. He said that, at his mother's suggestion, he made Glenn a director of the company, and because Glenn did not have any capital to contribute, Mrs Mace agreed that he could use the remaining $30,000 that he owed her as if Glenn had contributed that money to the company as capital. Brett issued 50% of the shares in the company to Glenn, who participated equally in the company until about 2004, when it was wound up. 3. The following cross-examination of Brett Mace occurred, beginning at T 91.16: Q. So you say that to the best of your recollection somewhere between 1996 and may be 1998 you returned the money that you held for your mother. Is that what you're saying? A. Possibly 92 and 98. Q. When you returned the money to your mother, of clause, you didn't take great wads of cash and give those to her, did you? A. Yes I did. … Q. So you're saying that on three or four occasions sometime around about 1998 you gave your mother wads of cash totalling some $12,000 or thereabouts? A. $20,000. Q. Your mother didn't keep $20,000 just lying around the house, did she? A. On occasions she'd have large sums of cash. Yes. 1. Brett Mace accepted, on the basis of Mrs Mace's bank statements that were shown to him, that Mrs Mace did not ever deposit into her bank account any sum of money of $20,000, or any other such a large sum. When asked at T 93.14 whether he could have approached the Commonwealth Bank to obtain records that might have shown withdrawals from the term deposit he said: "I won't deal with the Commonwealth Bank. I had a problem with them and I won't talk to them about… (not transcribable)". The evidence did not establish that, if Brett had sought to obtain these documents, it would have been discovered that they had been destroyed by the Bank. 2. Glenn Mace called evidence from Michael James Gibbons, a family friend who had lived with Mrs Mace and Glenn in the Property between about 1989 and 1992. Mr Gibbons gave evidence that Mrs Mace had said to him that she loaned Brett $10,000 for the deposit on his house at Woronora plus she loaned him $70,000 to pay off his mortgage because interest rates were high. She said that although the $70,000 was a loan, she did not think Brett would ever pay her back. 3. The issue that arises concerning whether or not Mrs Mace gave to Brett Mace the benefits that she said she had given him in her testamentary statement is not strictly whether her belief was true, and it is also not whether in fact she treated her two sons equally in relation to the benefits she gave to Brett and the transfer of the Property to Glenn. The issue concerns Mrs Mace's belief and state of mind, and whether any beliefs that she formed concerning the benefits she had bestowed on Brett at a time when she was clearly not under the influence of Glenn Mace, provide support for the conclusion that her decision to transfer the Property to Glenn was made of her own considered free will, and not under his influence. 4. A comparison between the terms of Mrs Mace's 24 July 1986 will and the will she made on 23 August 2000 objectively establishes that at the former date Mrs Mace proposed to give all of her property to her two sons in equal shares, but by the latter date she had decided to give the Property to Glenn Mace for life. Significantly, she proposed to give the remainder to her two grandsons in equal shares. It is clear that by 23 August 2000, Mrs Mace had formed the intention that Brett Mace would not receive any share in the Property on her death. 5. Mrs Mace's objective conduct from the time she executed her 23 August 2000 will, including when she made the written changes to her 24 July 1986 will on 2 January 2003, demonstrates consistently that she intended her son Glenn to have the sole ownership of the Property, at least for life, to the exclusion of Brett. 6. In this context, the act of transferring the title to the Property absolutely to Glenn Mace on 18 June 2009 was the culmination a proposal that Mrs Mace had been forming since no later than 23 August 2000. It was not a decision solely made by Mrs Mace at about the time of the transfer. Its principal practical effect was to accelerate the time that Glenn Mace acquired the Property from the time that her will could be executed to the time the transfer was made. 7. Mrs Mace's change of heart between her 24 July 1986 will and her 23 August 2000 will straddled the 1987 date when Brett Mace purchased the property at Woronora for $100,000, with the assistance of what Mrs Mace described in her testamentary statement as being a gift of $70,000. The change in the terms of Mrs Mace's will provides some objective support for the statements in her testamentary statement. That support causes me to find that Mrs Mace had a genuine belief that the information in her testamentary statement was correct. It is not necessary to make any specific findings concerning the precise truth of the contents of the testamentary statement. 8. The inflation that has occurred in Sydney residential real estate values over the last 30 years is notorious. There was no evidence that would permit the court to make any considered comparison between the relative value, as at the date of the transfer of the Property to Glenn Mace, of a contribution of $70,000 to the purchase of the Woronora property in 1987, and the value of the Property at the date of its transfer. As will be seen, in a conversation that she had with Ms Soszyn, Mrs Mace estimated that the value of the Woronora property would have been $750,000 at about the date she transferred the Property to Glenn Mace. It is not necessary for the court to make precise findings about these relativities. It is sufficient to observe that in broad terms, there is force in the comparison that the evidence suggests that Mrs Mace made, and if she made the decision to transfer the title to the Property to Glenn Mace upon the basis of her own assessment as to the relative value of her gifts to her two sons, she was not acting irrationally. Circumstances in which Mrs Mace executed the transfer and her last will 1. Ms Soszyn swore an affidavit, dated 3 January 2014, in which she set out her involvement in the transfer of the Property by Mrs Mace to Glenn Mace, and also the execution of Mrs Mace's last will. 2. Ms Soszyn said that she had been previously instructed by Glenn Mace to act for him on the probate of Mrs Mace's last will, and that she also acted for him in the defence of the proceedings initiated by Brett Mace, in which he sought probate in respect of Mrs Mace's 23 August 2000 will. Ms Soszyn withdrew from those proceedings because she considered that she had a conflict of interest because of her involvement in the preparation of Mrs Mace's 6 July 2009 will. 3. Ms Soszyn did not know Mrs Mace or Glenn Mace before, in about May or June 2009, she received a telephone call from Glenn Mace in which he asked her to attend on Mrs Mace at the Property, for the purpose of her making a new will. Ms Soszyn arranged a date to meet Mrs Mace to take her instructions. 4. Glenn Mace gave Ms Soszyn some details about Mrs Mace's children. No mention was made about a transfer of the Property. Ms Soszyn's file note listed the four children, and noted that the sons had been adopted and the daughters were foster children. It recorded Mrs Mace's birthdate, as well as: Residue to be divided equally house to Glenn 1. It follows that Glenn Mace advised Ms Soszyn during the initial telephone conversation that he was to get the house (i.e. the Property), and the residue was to be divided equally between the four children. At this stage, Ms Soszyn must have thought that this division of Mrs Mace's property would be implemented through her will. 2. Ms Soszyn did not record the date of her visit to the Property, but she did so in May or June 2009 to take instructions from Mrs Mace. Mrs Mace was sitting inside the lounge room, and Glenn and Anna were also there. After short introductions, Glenn and Anna left the room. 3. Ms Soszyn said that she spoke with Mrs Mace for about an hour. She annexed file notes of the meeting to her affidavit. I will say more about these file notes below. Ms Soszyn then set out in some detail the substance of her conversation with Mrs Mace. She has evidently used her file notes to assist her in recalling the details of the conversation. 4. Of primary relevance for present purposes, Ms Soszyn recorded the following instruction given by Mrs Mace: House to Glenn – Glenn has lived @ house, done all work associated with house, always available for shopping, doc appts, social visits. Glenn paid tradies for work, cared for her, have a close r'ship. 1. Mrs Mace handed to Ms Soszyn a statement that had been prepared in relation to each of her children and her relationship with them. In fact, it appears from the annexures to Ms Soszyn's affidavit that Mrs Mace did not hand to her a statement that related to Glenn Mace. Ms Soszyn has annexed a typed document that starts with the words: "This is the last will of Mrs Marjorie Rose Mace of 21 Saric Avenue Georges Hall…dated on this day 23rd of April 2009. The balance of this document contains much of the information in the testamentary statement signed by Mrs Mace which I have discussed above, and appears to be the source of much of that information. Ms Soszyn annexed statements concerning Brett Mace and the two daughters. All of the documents had been typed. I will return to deal with the way in which the documents were prepared below. The document concerning Brett Mace stated: In 1987 my son, Brett Ronald Mace purchased a home, on the river at 22 Thorp Road Woronora. The total purchase price of this property was $100,000. I, Marjorie Rose Mace gave my son Brett the total amount of $70,000 which was paid towards his home at 82 Thorp Road Woronora. My son, Brett Ronald Mace has had his share of money from myself, Marjorie Rose Mace, and his father Ronald William Mace in the past years. Brett Ronald Mace has also held in his own bank account a further $70,000 this money belonged to me, Brett was supposed to hold it for me but, this money was never returned to myself in any form to this day. I, Marjorie Rose Mace, gave my son Brett Ronald Mace a further $20,000 to start his business which was called Ad Glass Pty Ltd at Caringbah. This money was supposed to be returned to me, but the money was never paid back to me in any shape or form to this day. 1. The statements concerning Ms Crilley and Margaret Mace, the two foster daughters, also contained details to explain why Mrs Mace thought that she had made provision for her daughters. 2. On the last page of the statements the following is written in handwriting: BELINDA COULD YOU PLEASE ADD THIS TO MY WILL THANKYOU 1. Ms Soszyn gave evidence of her initial conversation with Mrs Mace which was intended to allow Ms Soszyn to satisfy herself that Mrs Mace was of sound mind and capable of giving proper instructions to Ms Soszyn. Ms Soszyn encapsulated her opinion in the following paragraph of her affidavit: My impression of the Deceased was that she was healthy but physically frail, however she was mentally robust, alert, attentive and coherent. She appeared to fully understand what I said to her. She communicated with me easily and did not repeat herself. She recalled many events in her life and could readily provide important dates of family occasions, birthdays and other milestones. She recalled events from the previous day as well as from 20 years prior. She also chatted about crossword puzzles which she enjoyed doing. I was completely satisfied that she had testamentary capacity. I did not think it was necessary to obtain a doctor's report as to her mental faculties. 1. Ms Soszyn said that Mrs Mace explained to her that she owned the Property but did not live there anymore. Glenn Mace and his wife and son lived in the Property. Glenn bought a ground floor villa for Mrs Mace to live in in Condell Park. The villa was purchased because Mrs Mace was finding it difficult to manage at the Property. Neither Mrs Mace nor Glenn paid the other any rent for living in the other's property. 2. Mrs Mace gave her 1986 will to Ms Soszyn, with the handwritten additions to which I have referred above. 3. Mrs Mace said to Ms Soszyn that Brett's wife, Yvonne, took her to a solicitor in 2000 to change her will to permit Glenn to live in the Property during his lifetime. She said that she was not given a copy of that will, and was not happy with the way it had been handled. 4. Mrs Mace said that she wrote the words on the 1986 will because she did not have a copy of the 2000 will, and "wanted to make it clear that Glenn is to have the house". 5. Ms Soszyn said that the following conversation occurred between her and Mrs Mace: She said: I decided some time ago that I would put this house into Glenn's name. The rest of my things can be divided up between my four children. I said: So you want to put the title to your house in Glenn's name right now? She said: Yes. 1. Ms Soszyn then had a discussion with Mrs Mace about the possibility that, if the Property was transferred to Glenn, her other children might still be able to make a family provision claim in relation to the Property. This part of the conversation then continued: She said: I don't think that will happen. I will tell all the children what I have done. The kids all know how much Glenn has helped me and I have provided for all of them. I have told them lots of times that Glenn will get the house. Besides I hardly ever see Brett, Denise or Margaret – only on special occasions. I said: If you transfer the house to Glenn now you will no longer own it. That means you would not have any legal right to it. It would be Glenn's asset and he could do what he liked with it. An alternative would be to leave the house to him in your will. It can be an outright gift rather than a life estate. She said: No. I would rather do it now. I think there will be less problems later if it's all settled now. I don't live here. This is Glenn's home. Glenn will look after me. I live in the house he owns. Glenn has lived in this house for a long time. He has done lots of repairs and maintenance. He always makes time to take me to doctors' appointments and shopping. He is always looking out for me. 1. It should be noted that a number of the statements that Mrs Mace is recorded as having made are arguably exaggerated. I refer to the statement that Mrs Mace hardly ever saw Brett. Mrs Mace's statement about the help she received from Glenn is probably balanced, but the evidence would suggest that she also received a substantial amount of assistance from Brett. 2. Ms Soszyn said that she had thought that she was only taking instructions in relation to Mrs Mace's will, until Mrs Mace said that she wanted to transfer the Property to Glenn immediately. 3. Ms Soszyn advised Mrs Mace that Glenn should make a will giving her a right of residence at either the Villa or the Property to ensure that she would always have somewhere to live. 4. She read each of the pages that Mrs Mace gave her to which I have referred above, and discussed each item with Mrs Mace. She said that Mrs Mace confirmed to her all the facts stated in the notes. She said that Mrs Mace made the following statements to her: I have financially helped all of my children. After my husband died I gave the boys half each of my share of the hotel. The money was left to me but I decided the boys could make better use of it. I also gave Brett $70,000 towards the purchase of a home in Woronora. The house only cost $100,000 back then in 1987 but I think it is worth about $750,000 now. I also gave him approximately $100,000 to hold for me so that it would not appear in my bank account and another $20,000 for a new business venture he was trying to get into. I have not seen any of that money back. 1. Ms Soszyn said that she explained the process of transferring the Property to Mrs Mace, and that she would need to get a valuation, and stamp duty would need to be paid on the transfer. Mrs Mace said that she would get Glenn to arrange the valuation and that he would need to pay the stamp duty and legal costs. 2. After Ms Soszyn had finished speaking with Mrs Mace privately, she explained the process for having the house transferred to Glenn and Anna Mace. 3. Mrs Soszyn said that she always regarded Mrs Mace as her client, not Glenn or Anna Mace. The accounts that she rendered were addressed to Mrs Mace. She did not provide legal advice to Glenn and Anna Mace. (The evidence that Ms Soszyn only rendered accounts to Mrs Mace was incorrect. Her tax invoice for the preparation of the wills for Mrs Mace and Glenn Mace, and the transfer of the Property, was addressed to Glenn Mace and Mrs Mace on 6 July 2009. Ms Soszyn sought in cross-examination to explain the inclusion of Glenn Mace's name on the invoice by referring to the fact that she had prepared a will for Glenn). 4. Ms Soszyn also said in her affidavit: 33. In all of my dealings with [Mrs Mace, Glenn and Anna] it was apparent to me that [Mrs Mace] was the primary decision maker for the family and that [Mrs Mace] was treated, and expected to be treated, with respect. When she expressed opinions or referred to decisions she had made or actions she had taken, she took responsibility and did not defer to her son, or anybody else, for approval. 34. I did not observe any behaviour that suggested that [Mrs Mace's] will was overborne, or even influenced, by [Glenn and/or Anna]. Every intention that [Mrs Mace] expressed to me, appeared to me to be her own intention. 1. Ms Soszyn also gave evidence about the arrangements made to effect the transfer, and to pay the stamp duty and other costs (which were paid by Glenn Mace). 2. She also attended the Property on 6 July 2009 to have Mrs Mace sign her final will. 3. About 18 months later, she also attended upon Mrs Mace at her nursing home to have Mrs Mace sign an enduring power of attorney in favour of Glenn Mace. She did so at the request of Glenn Mace. Ms Soszyn said that during her discussion with Mrs Mace they discussed her remaining assets and she could easily recall all matters surrounding the will made in July 2009, and the transfer of the Property to Glenn Mace. She said that Mrs Mace was alert and attentive and asked relevant questions. Mrs Mace also asked Ms Soszyn about Ms Soszyn's dog (which the pair had discussed at the time Ms Soszyn attended upon Mrs Mace for the purpose of executing her will). Ms Soszyn said: "I was satisfied that she had full mental capacity". 4. Ms Soszyn swore a second affidavit on 1 April 2014. This affidavit dealt with the preparation of the file notes of her attendances on Mrs Mace in 2009 to take instructions and later for the execution of Mrs Mace's will, which Ms Soszyn had produced to the court in answer to a subpoena that required her to produce her file. The subpoena that led to the production of the documents was issued by the court on the application of Brett Mace in the earlier probate proceedings that have now been dismissed. 5. Ms Soszyn explained that, between July 2005 and January 2011, she worked at the Mt Druitt & Area Community Legal Centre. A well-known Sydney firm of solicitors, which it is not necessary for me to name, provided financial support to the Centre, as well as writing pads bearing the name of the firm. Ms Soszyn prepared the file notes of her attendances upon Mrs Mace using the stationery of the firm. Before Ms Soszyn produced her file to the court in the earlier proceedings, she "rewrote file notes that were on [the firm's] stationery onto my own stationery because I thought it was inappropriate to have that firm's name in my file". Apart from the heading on the stationery "the only differences between the original file notes and the rewritten file notes is that the writing is neater and more legible and there may be small corrections of grammar or spelling". Ms Soszyn said that the notes were otherwise true and accurate copies of the original file notes. 6. Ms Soszyn was cross-examined on behalf of Brett Mace. While counsel probed a number of differences between Ms Soszyn's file notes and her affidavit evidence of her conversations with Mrs Mace (whereby Ms Soszyn appeared to remember the conversations in somewhat greater detail than she had recorded in her notes), and while counsel sought to obtain Ms Soszyn's agreement that in reality she acted for Glenn Mace as well as Mrs Mace, it was not put to her that her evidence was false in any material respects. 7. Having had the benefit of witnessing the cross-examination, I am satisfied that Ms Soszyn gave her evidence as carefully and truthfully as her recollection would permit. She was aided in her recollection by relatively full file notes. On a number of occasions, she made concessions that she could have acted more carefully, particularly in relation to the comprehensiveness of her file notes. 8. Ms Soszyn maintained her stance that she regarded Mrs Mace as her client, and only dealt with Glenn Mace because it was necessary for her to do so, because her client had instructed her that Glenn was to obtain the valuation and pay the stamp duty and other costs, and it was necessary to get Glenn to sign the transfer to effectuate Mrs Mace's instructions. Her position also was that she prepared Glenn Mace's will, in which he left a life estate in the Villa to Mrs Mace, as that was also necessary to implement her instructions. 9. I accept Ms Soszyn's explanation for why she recreated her file notes so that they would not be on the letterhead of the firm of solicitors who provided the spare paper to her employer, before she produced her file to the court in answer to the subpoena. It was plainly wrong for Ms Soszyn to fail to produce to the court the file in its original condition. However, notwithstanding that she acted in an inappropriate and misguided way, I accept the truth of Ms Soszyn's explanation. 10. Ms Soszyn was consistent and adamant in her evidence that she was entirely satisfied that Mrs Mace was competent and gave her instructions of her own free will, and clearly understood the effect of her instructions, and wanted those instructions to be carried out. 11. Ms Soszyn gave the following evidence in cross-examination concerning the reasons given by Mrs Mace for transferring the Property to Glenn Mace, without giving any interest in the Property to Brett (T 198.2; T 199.1): She probably – she had a very good recollection of what she had done. She told me this on a number of occasions about the house in Woronora. I knew more about the house in Woronora than about a lot of other things. So she told me quite detailed information because this – he was struggling – apparently Brett was struggling with the mortgage. It was during the great Paul Keating period when interest rates were 17%. I was a victim myself and he was struggling to pay the mortgage and she assisted him. That's the information she provided to me. … She believed and that the information she told me was that providing Brett with the payment of this mortgage plus some other monies and some loans in relation to a business meant that he already had his house. That's the term that she used. He got his house. 1. She also strenuously adhered to her evidence that, while Mrs Mace appeared frail, she was not unhealthy. She did not accept that, on the assumption that Mrs Mace only weighed 44 kg at the time, it meant that Mrs Mace was physically frail. Ms Soszyn said (T 193.43): "Mrs Mace was a very vibrant woman verbally. I'm not saying she was physically, but she was a talker, and she talked quite a lot". Medical evidence 1. Brett Mace read an affidavit and report by Dr Francis Robin Weekes, who was Mrs Mace's general practitioner for the period from 2006 to April 2009. Dr Weekes responded to the following instruction from the plaintiff's solicitor: Two important issues in this case are; 1. Glenn Mace does not concede that his late mother had a significant degree of restriction in her mobility following her hip operation in 2006 at the relevant time (June 2009); and 2. Glenn Mace challenges the assertion that the deceased was socially isolated at the relevant time. Accordingly, we request you to provide a report that in your opinion accurately reflects the condition of your late patient as to whether she was affected by limited mobility and/or social isolation. If so, please also provide your opinion as to whether she was consequently physically, emotionally or otherwise dependent upon or vulnerable to her sons or any other persons with whom she had close contact. 1. At the time Dr Weekes prepared his 10 June 2014 report, he no longer had Mrs Mace's medical records, and he had last seen her in April 2009. He said that Mrs Mace attended his surgery at Padstow for treatment for asthma, hypertension and Type 2 diabetes. Before Mrs Mace had a fall at home in July 2006, "her physical condition was totally independent and her mental status was very rational and normal". As a result of the fall, Mrs Mace fractured her left femur and had surgery with a total hip replacement. Dr Weekes continued to treat Mrs Mace for her pre-existing conditions, and "also analgesia for her left hip". Mrs Mace continued to attend Dr Weekes' surgery using a walking frame, and she had to manage a taxi. Dr Weekes expressed the following opinion: As far as physical dependence, to the best of my knowledge she had lost all her independence, she had to organise taxi transport as she could not manage public transport, she could only walk outside the house with the use of a walking frame, I am not sure as to how much she needed the walking frame inside the house. She required Meals on Wheels, home care and she used a Medical Alert button in case of any falls or injuries. Her mental state seemed to be fairly stable during the period I saw her, although she was mildly depressed because of the loss of her independence, but her thinking seemed to be quite rational when I last saw her, which I believe to be in April 2009. Very rarely did she talk to me about any of her children except for her daughter Denise. As to whether her loss of independence, her social isolation, her mental status would have been affected by the analgesia she took for the state of her hip, whether this would have affected her being influenced by a person in a more superior position than her, I really cannot say as I did not see her at the time of death. 1. Glenn Mace read an affidavit of Dr Susan Harnett, who was Mrs Mace's general practitioner, after Mrs Mace ceased to attend Dr Weekes, because of difficulty in travelling to Dr Weekes' surgery. Dr Harnett was provided with a copy of Dr Weekes' report, and asked a number of specific questions by Glenn's solicitor, a number of which focused on the issue of whether or not Mrs Mace was suffering from depression. Most significantly, Dr Harnett was asked: 7. In your observation, as at June 2009, did Mrs Mace suffer from any physical, emotional or mental impairment that had the effect of putting her son, Mr Glenn Mace, in a position of ascendancy over her? 8. In your observation, as at June 2009, did Mrs Mace suffer from any physical, emotional or mental impairment that might have resulted in the transfer of real estate in June 2009, being done other than with the free, voluntary and independent will of Mrs Mace? 1. In her initial response dated 15 August 2014, Dr Harnett specifically did not respond to questions 7 and 8 on the ground that she was not Mrs Mace's treating physician at the time of the transfer. She said that Mrs Mace was her patient from 28 August 2009 until her death. Accordingly, Mrs Mace was not a patient at the time of the transfer of the Property in June 2009. Dr Harnett stated: To the best of my knowledge, Marjorie Mace had not been diagnosed nor did I diagnose her with depression. She has never received any treatment relating to depression during the years she was under my care. Lastly she was not referred to any other physician for treatment of depression by myself in this period either. 1. Glenn Mace's solicitor responded by restating questions 7 and 8, but changing the relevant date for the expression of Dr Harnett's opinion from June to August 2009. 2. On 14 October 2014, Dr Harnett responded to the solicitor's letter, and materially said: … She presented as an articulate lady with significant medical problems mainly involving the left hip at the time of presentation in August 2009. Weight bearing on that joint caused considerable pain and limited her mobility despite the use of a frame. We discussed her physical health issues and her past history. At no time did she mention her family nor the presence of problems within the family. I understood her to be living alone in her own home and not being able to drive and becoming confined more and more to the house. I understood there was no one except this friend to drive her around and attend appointments. She appeared as a frail underweight lady who was finding life increasingly difficult and frustrating due to her hip problems. I could not say that she was in a position to be unduly influenced by her son at that time. She certainly had mental capacity when first seen to understand the transfer of real estate arrangement. 1. The evidence therefore shows that Mrs Mace's last visit to Dr Weekes and her first consultation with Dr Harnett straddled the date of her execution of the transfer of the Property. Dr Weekes said that Mrs Mace's mental state seemed to be fairly stable, and although she was mildly depressed because of the loss of her independence, her thinking seemed to be quite rational. Dr Weekes did not express any view about whether Mrs Mace's loss of independence, her social isolation, her mental status, or the analgesia that she took for the state of her hip would have affected her being influenced by a person in a more superior position than her. Dr Harnett said that Mrs Mace was an articulate lady, and although she suffered from physical problems that had substantially limited her independence, and was "finding life increasingly difficult and frustrating due to her hip problems", she "could not say that Mrs Mace was in a position to be unduly influenced by her son", and that she "certainly had mental capacity… to understand a transfer of real estate". 2. While Dr Harnett's comment concerning the likelihood that Mrs Mace would be influenced by her son is somewhat indirectly expressed, the evidence of the two doctors tends to support a conclusion that, at the time she executed the transfer, Mrs Mace was articulate, and capable of thinking rationally, and understanding the nature of the transfer, and at least not obviously in a mental condition that would suggest a likelihood that her will would have been overborne by the influence of her son. Mrs Mace's mental and physical condition 1. Brett Mace's case concerning Mrs Mace's mental and physical condition was essentially that she had become dependent by reason of her age and frailty, and particularly the pain that she suffered as a result of a hip replacement, which caused her to need a walking frame, but which also led to her becoming despondent and isolated, and dependent for most of her needs in life on her family. He specifically disavowed putting his case as highly as claiming that Mrs Mace suffered from clinical depression. 2. Brett Mace gave some evidence that his mother had said to him on occasions that she would not give the Property to Glenn, and that Mrs Mace had said that she was annoyed because Glenn Mace had tried to persuade her to leave the Property to him. However, he also said that Mrs Mace gave him a copy of her 23 August 2000 will, so he knew that Mrs Mace intended to leave Glenn a life estate in the Property, and to give the remainder to her grandsons, and that he would not receive any share of the Property. 3. According to Brett Mace, he always maintained close contact with his mother. He telephoned her daily. He would visit whenever he was nearby, which was often, and attended to shopping that she asked him to do. He took her food a couple of times a week as she was not preparing food herself. 4. He said that Mrs Mace was unhappy as a result of her physical and medical condition at times after a fall that she had in 2006, which was exacerbated by loneliness. He said that between her fall in 2006 and the date of her death Mrs Mace's awareness as to the details of life around her and her interest in life greatly diminished. He asserted that when he observed Mrs Mace read her mail it was clear to him that she had very little understanding of what papers and documents meant. She lost interest in dealing with paperwork and handed him her bills and her credit card to arrange payment. Apart from one carer who cleaned the house and one carer who assisted Mrs Mace to bathe and dress, she became totally reliant upon Brett, his wife and Glenn to carry out most of the activities of managing daily life. They attended to all shopping and bill payments. Sometime after Mrs Mace broke her hip, she told Brett that she did not renew her driving licence. 5. Brett Mace claimed that in 2009 Mrs Mace was in constant pain as a result of injury to her hip and took powerful pain relief medication which managed but apparently did not erase the pain. Mrs Mace had very limited mobility. She used a walking frame to walk around the inside of the Villa; she could not walk more than 20 m, and she was not really able to walk unassisted outside her home at all. 6. He said that Mrs Mace simply could not go out alone, so she depended upon him, his wife, Glenn, and occasionally their sister, Ms Crilley, to take her anywhere out of her home. She had no close family other than her children and their families, and no friends who she kept in contact with, who visited her and took her out. By 2009, Mrs Mace was totally reliant on Brett and Glenn Mace to continue to live alone rather than in a nursing home, but in 2010, that move became necessary. 7. Brett Mace elaborated on the condition of Mrs Mace in his affidavit in reply. He said that Mrs Mace was prescribed anti-depressant medication for a period after her hip operation following a fall in 2006. The evidence shows, however, that Mrs Mace's use of that medication was only temporary. He said that Mrs Mace weighed approximately 75 kg prior to her fall, but her weight had reduced to 41 kg by 2009. Mrs Mace's weight loss reduced both her strength and her balance, and hence her ability to be independently mobile even with a walking frame. He said that Mrs Mace was unable to drive or catch public transport, including a taxi unless it was set up for a wheelchair. 8. The conclusions expressed by Brett Mace concerning the deterioration in his mother's mental and physical condition may be represented by the following extracts from his affidavit in reply: … She ceased being an independent decision maker and became increasingly dependent on the defendant and me in making her day-to-day decisions and enabling her to live on her own in her own residence (par 9 (ii)) Mum was not active after 2006 and was socially isolated. She was lonely, having contact only with me, my wife, our son, the defendant, his wife and their son and occasionally my sister Denise… (par 9 (iv)) To my observation… after 2006. Mum would on occasions call me Glenn rather than Brett, would be vague and would not recall recent visits by my sister Denise, who also took her to medical appointments on (rare) occasions. She…trusted us completely. 1. Brett Mace's wife, Yvonne Woon-Ling Mace, gave evidence concerning Mrs Mace's mental and physical condition after her fall in 2006 that was generally consistent with that given by her husband. However, in some respects her evidence concerning Mrs Mace's condition was more extreme. For example, she said in par 29 of her primary affidavit: … I continued to visit Mum regularly and from the beginning of 2009 I frequently observed her to be in an almost semi-conscious state often slumped in a chair with her head rolled back in a daze not doing anything, not communicating. When Brett and I visited her and engaged her in conversation she often confused Brett with Glenn although she never confused my name. 1. I regard this evidence as being out of line with that given by Brett Mace and the other witnesses concerning Mrs Mace's condition. 2. Glenn Mace said that in about late 1997 Mrs Mace informed him that she wished to move out of the Property into accommodation that better suited her, but that he was to stay at the Property. He claimed that the decision to move was entirely Mrs Mace's, and that he had been informed of her decision once she had made it. Glenn took Mrs Mace to see various properties, and she decided that she would like to live in the Villa. Glenn bought the Villa for Mrs Mace to live in. 3. Glenn Mace gave the following evidence concerning the effects of the 2006 accident on Mrs Mace. He said that she was prescribed anti-depressant medication purely to help her cope with the pain during rehabilitation. Mrs Mace told him after she had seen Dr Weekes in 2006, that she had stopped taking the anti-depressant drugs. Mrs Mace was never diagnosed with, or treated for, depression. 4. Mrs Mace's mobility issues related to flexibility and balance, not to muscle strength. Glenn took Mrs Mace shopping every Saturday morning, and helped her with minor repairs and maintenance at the Villa. Mrs Mace relied upon him a little bit more to help her physically with things like changing a light globe or reaching the top of the cupboard, after 2006, but she mostly relied upon him to help her travel to appointments, which was once or twice a month. 5. Mrs Mace's ability to engage in her interests and hobbies in tapestry, reading, puzzles and birds was not affected by her hip replacement. After 2006, Mrs Mace occasionally expressed frustration about her limited mobility, but she generally took it in her stride. There was no deterioration in her mental health as a result of her breaking her hip. Glenn Mace said: I never saw anything in the Deceased's behaviour before or after 2006 that indicated to me that the Deceased was unhappy, or needed anything more than physical assistance. We had always had a caring and supportive relationship and that did not change. 1. Mrs Mace decided on her own to move into an aged care facility after she had another fall at the Villa in May 2010. 2. Glenn Mace said in relation to the period in which he lived in the Property with his mother after the death of his father that he paid for all Council rates and services such as electricity and water. He also paid for all repairs and maintenance required for the house. He did maintenance chores around the house such as mowing, gardening, garbage disposal and pool cleaning. 3. Over a period of about 10 years, Glenn Mace paid for some major maintenance and repairs to the Property, without any contribution from anyone else. Glenn listed six items of work with a total estimated cost of about $66,500. 4. In the period after Glenn bought the Villa for Mrs Mace to live in, he paid the utilities and rates. Mrs Mace's only income was an aged pension, and Glenn was working. Neither Mrs Mace nor Glenn paid the other rent for living in the other's property. It was an informal family arrangement. Glenn took extra shifts at work to pay off the mortgage on the Villa. 5. Glenn Mace said that in 2009, Mrs Mace said to him that she no longer expected that Brett Mace would ever pay her back the money that she had loaned him in relation to the purchase of the property at Woronora, and at the same time, she said that she wanted to put the Property in Glenn's name. 6. He also said that Mrs Mace asked him to type up some notes for her to give to the solicitor for her new will. She gave him hand written notes, and sometimes verbal instructions. He typed them on the home computer and printed them out for Mrs Mace. Often after he gave her the typed notes, Mrs Mace would make corrections and ask him to re-do it and he would. The typed notes prepared by Glenn were the notes that Mrs Mace gave to Ms Soszyn. 7. I accept Glenn Mace's evidence concerning the circumstances in which he assisted his mother to prepare the notes that she ultimately gave to her solicitor. There is no basis in the evidence for the court to draw any conclusion that Glenn Mace recorded any information in the notes that he was not instructed to include by his mother. The notes are consistent with the information that Mrs Mace gave to Ms Soszyn in their conference, and I accept Ms Soszyn's evidence that Mrs Mace adopted the notes as being effectively her own. 8. Glenn Mace's wife, Anna Maria Rosa Mace, gave evidence that was consistent with his view of Mrs Mace's mental and physical condition after her fall in 2006. She disagreed that Mrs Mace had very little understanding of what papers and documents meant, and that Mrs Mace had lost all interest in dealing with paperwork and handling her bills and her credit card after her fall. She did not accept that Mrs Mace was in constant pain, or that she continually took painkillers. She said that, after the fall in 2006, Mrs Mace was elderly, but she was not frail or incapable of looking after herself, although she needed some assistance with mobility after 2006. She said: … I have never seen Mrs Mace depressed or unusually unhappy. Mrs Mace had a healthy attitude to life and its difficulties. Additionally, I did not ever witness Mrs Mace suffer diminished interest in life. Neither did she display a lack of awareness of the details of life around her. Mrs Mace had a remarkably sharp mind up until her death on 18 February 2011… (par 11) The plaintiff's case 1. Brett Mace put his case that the court should make an order setting aside the transfer of the Property by Mrs Mace to Glenn Mace on two grounds; namely: 1. on the facts of this case a presumption of influence existed of Glenn Mace over his mother; and Glenn Mace has failed to prove that the transfer was not brought about by the exercise of that influence, so that the court cannot be satisfied that the transfer was intended by Mrs Mace of her own free will; and 2. the transfer of the property by Mrs Mace to Glenn Mace was procured by the latter's unconscionable conduct in taking advantage of Mrs Mace's vulnerability to and dependence upon him such that reliance by Glenn Mace on Mrs Mace's instructions and actions giving rise to the transfer was unconscionable. 1. There is an important feature of the relief claimed by Brett Mace in these proceedings which could have a significant bearing on the relief that the court should grant to him, if he were to succeed in establishing that there are grounds for the court to set aside the transfer of the Property to his brother. In my view, it is clear that Mrs Mace decided that she would transfer the Property to Glenn Mace as part of the same arrangement whereby she decided that by her will, she would divide the residue of her estate equally between her four children. Brett Mace asks the court for an order setting aside the transfer of the Property, but that will leave the probate that has been granted in respect of Mrs Mace's final will in effect. The consequence would be that all four children would become entitled to an equal 25% share in the Property. That would be a result entirely inconsistent with Mrs Mace's intentions since no later than 23 August 2000. For most of the period following that date, there is no doubt that Mrs Mace was fully capable of making her own mind up concerning the devolution of the Property. If the court were to make the order sought by Brett Mace, the consequence would be entirely inconsistent with Mrs Mace's wishes. 2. It will be convenient to deal with the first basis of the plaintiff's case, before the second is considered. Principles governing undue influence 1. There was no issue between the parties concerning the legal principles that the court is required to apply in deciding whether the transfer of the Property was brought about by undue influence exercised by Glenn Mace over his mother. Those principles have conveniently been collected in a number of recent decisions of this court. It would not be helpful for me unnecessarily to multiply the number of different statements of principle in this area of law, and I will respectfully adopt the following passages from the judgment of Ball J in Courtney v Powell [2012] NSWSC 460: [37] The general principles relating to undue influence were usefully summarised by Gzell J in Tulloch (dec'd) v Braybon (No 2) [2010] NSWSC 650, at [38] in these terms: Equity avoids dispositions of property procured by the improper or unconscientious use of the influence of one person over another, that cannot be explained on the grounds of friendship, charity or other ordinary motives on which people ordinarily act [National Westminster Bank plc v Morgan [1985] AC 686 at 708; Bank of New South Wales v Rogers (1941) 65 CLR 42 at 54]. Undue influence may be established by proof that the disponor's assent was in fact procured by undue influence ("actual undue influence"), or by an unrebutted presumption arising from the existence of a relationship of influence between the parties where the quantum or improvidence of the transaction is such that it cannot be explained on grounds of friendship, relationship, charity, or other ordinary motives ("presumed undue influence") [Whereat v Duff [1972] 2 NSWLR 147 at 168; Quek v Beggs (1990) 5 BPR 11,761; Allcard v Skinner (1887) 36 Ch D 145 at 185; Goldsworthy v Brickell [1987] Ch 378 at 400–1]. Some relationships — such as parent and child, guardian and ward, solicitor and client, doctor and patient, (probably) spiritual adviser and follower, and (arguably) fiancé and fiancée — are presumed to be relationships of influence. In addition, a relationship of influence can be established by showing that it is one which involves ascendancy and influence on the part of the dominant party, or dependence, reliance, trust and confidence on the part of the weaker party [Johnson v Buttress (1936) 56 CLR 113 at 134–5; Stivactas v Michaletos (No 2) (1993) NSW ConvR 55-683, 59–908]. [38] Although the relationship between parent and child is one which is well-accepted as giving rise to a presumption of undue influence, that is only true insofar as a parent is presumed to exercise influence over his or her child. There is no presumption in the opposite direction: Brown v New South Wales Trustee & Guardian [2011] NSWSC 1203 at [46] per Brereton J. Consequently, in order to establish a presumption that a child has exercised undue influence over his or her parent, it is necessary to prove that there was a "special relationship" of influence between the parties. In Quek v Beggs (1990) 5 BPR 11,761 at 11,764, McClelland J stated that two circumstances must be proved if a presumption of undue influence is to arise. They are: (a) that at the time the gift was made there existed a relationship between the donor and the donee of such a nature as to involve reliance, dependence or trust on the part of the donor resulting in an ascendancy on the part of the donee; and (b) that the gift is so substantial, or so improvident, as not to be reasonably accounted for on the grounds of friendship, relationship, charity or other ordinary motives on which ordinary persons act … [39] As Cotton LJ explained in Allcard v Skinner (1887) 36 Ch D 145 at 171 (quoted with approval by McClelland J in Quek v Beggs at 11,764), in cases where the presumption applies "the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused". [40] It is not necessary to show that the relationship is one of domination by the donee of the donor. A position of dependence or trust enabling the donee to influence the donor is enough: Stivactas v Michelatos (No 2) (1993) NSW ConvR 55-683 at 59,908 per Sheller JA. [41] In order to rebut the presumption, it must be proved that "the gift was the independent and well-understood act of a man [or woman] in a position to exercise a free judgment based on information as full as that of the donee": Johnson v Buttress (1936) 56 CLR 113 at 134 per Dixon J. Relevant to that question is whether the intention to make the gift originated with the donor: Watkins v Combes (1922) 30 CLR 180 at 196 per Isaacs J. But that is by no means conclusive: Spong v Spong (1918) 18 CLR 544 at 549 per Griffiths CJ. The real question is how the intention was produced: Hewitt v Gardner [2009] NSWSC 1107 at [73] per Ward J. [42] Whether or not the donor received independent advice on the transaction will be important in proving an independent and well-understood act of free will. As Latham CJ stated in Johnson v Buttress at 119–120: It may not be necessary in all cases to show that the donor received competent independent advice … But evidence that such advice has been given is one means, and the most obvious means, of helping to establish that the gift was the result of the free exercise of independent will; and the absence of such advice, even if not sufficient in itself to invalidate the transaction, would plainly be a most important factor in determining whether the gift was in fact the result of a free and genuine exercise of the will of the donor. [43] When there is evidence of advice to the donor, that advice must be both independent and effective for the purpose of enlivening the client's appreciation of the transaction, its legal effects and the alternatives (if any) which are open to the client: Strivactas v Micelatos (No 2) at 59,903 per Kirby P. In other words, the advice must be sufficient to operate as "an antidote" to the invalidating presumption arising in the context of the doctrine of undue influence: Hewitt v Gardner at [77] per Ward J. [44] Finally, it has also been said that the onus on the donee seeking to uphold the transaction in the face of a presumption of undue influence will be much heavier where the donor has given away practically all of his or her property: Johnson v Buttress at 120 per Latham CJ. 1. In the present case, Brett Mace does not claim that the transfer of the Property occurred as a result of actual undue influence exercised by his brother. The question is whether a relationship of influence in fact existed between Glenn Mace and Mrs Mace, and whether the presumption arising from the existence of that relationship has not been rebutted by Glenn Mace. 2. There is no presumption of the exercise of influence by Glenn Mace over his adoptive mother, so it will be necessary for Brett Mace to prove that there was a "special relationship" of influence. 3. The first matter to be proved is whether, at the time Mrs Mace transferred the Property to Glenn Mace, there was a relationship between the two that involved reliance, dependence or trust on the part of Mrs Mace resulting in an ascendancy on the part of Glenn Mace. 4. A feature of this case is that, while Brett Mace claims that Glenn Mace had the required ascendancy over Mrs Mace, Brett Mace does not say that his brother was the only one in this position of ascendancy. Brett Mace accepts that, by reason of Mrs Mace's circumstances, and the relationship that he and his wife had with Mrs Mace, and her dependence upon them, as well as his brother and her wife, he was also in a position of ascendancy. Brett Mace's case is that it is not necessary for him to establish that his brother was the sole person in a position of ascendancy over Mrs Mace; it did not matter how many persons had that relationship of ascendancy; the real question was whether one person in the ascendancy had unduly taken advantage of that relationship with Mrs Mace to gain an advantage for themselves. 5. If Brett Mace establishes that in fact Glenn Mace had a relationship of ascendancy over Mrs Mace, the question will be whether the transfer of the Property was a gift that was so substantial, or so improvident, as not to be reasonably accounted for on the grounds of friendship, relationship, charity or other ordinary motives on which ordinary persons act. 6. In the present case, there is no evidence that would justify the court finding that the intention to make the gift originated with anyone other than Mrs Mace. While it may be an open question as to whether Glenn Mace unduly influenced Mrs Mace, I accept the evidence given by Ms Soszyn, and that evidence supports a finding that the decision to transfer the Property was made by Mrs Mace. 7. It will finally be necessary to consider the effect of the advice given by Ms Soszyn to Mrs Mace in relation to the transfer of the Property and the execution of her final will. Consideration 1. For the following reasons, I reject Brett Mace's argument that Mrs Mace transferred the title to the Property to Glenn Mace on 18 June 2009, because of undue influence exercised by Glenn, as a result of the existence of a relationship of reliance, dependence or trust on the part of Mrs Mace in Glenn, that resulted in him having an ascendancy over her. 2. Further, I do not accept that the gift of the Property was so substantial, or so improvident, as not to be reasonably accounted for on the grounds of the loving relationship between Mrs Mace and Glenn Mace, in the special circumstances of this case. 3. It must be accepted that the Property represented practically all of Mrs Mace's property, and she was left with very little property of her own after she made the gift to Glenn Mace. 4. However, Glenn Mace did buy the Villa that was a suitable property for Mrs Mace to live in until she suffered the final fall that caused her to decide that she should move into an aged care facility. Mrs Mace did not have any legal tenure in the Villa, but I find that she trusted Glenn, and as events have occurred, her trust was warranted. The term in Glenn Mace's will by which he left Mrs Mace a life estate in the Villa did not provide complete security of tenure in the Villa to Mrs Mace, but it went a considerable way to providing protection for her. 5. The evidence shows that Glenn Mace lived in a loving, caring, respectful and obedient relationship with his mother for all of his life between his adoption and her moving out into the Villa, and there is no reason for the court to doubt the reliability of his willingness to ensure that Mrs Mace was properly accommodated, or to doubt her confidence that Glenn would continue to honour without question the family arrangement between them. 6. Mrs Mace's decision to transfer the title to the Property to Glenn Mace as a gift had nothing to do with her emotionally preferring Glenn to Brett, or her other children. I am satisfied that Mrs Mace had a close and loving relationship with both Glenn and Brett, as well as a reasonably close relationship with her foster daughters (although the evidence did not deal in detail with the relationship with the daughters). Mrs Mace's decision was based upon her own view of what fairness required in relation to how she treated her two sons. She based her consideration on two matters. First, by reason of the money that she had given to Brett, or lent him and not been repaid, she took the view that she had provided for Brett in a way that would be roughly equal to the result of giving the Property to Glenn. Secondly, Glenn had repaired and maintained the Property for many years, out of his own pocket, and paid all of the outgoings in a manner that saved Mrs Mace the worry of having to pay for her own accommodation. Furthermore, Glenn had bought the Villa for her to live in, and he had paid all of the outgoings in relation to the Villa. 7. It is not required of the court that it weigh in a fine balance the relative value of the benefits that Mrs Mace conferred on each of her two sons, particularly in so far as the substantial differences in the timing of the conferral of the benefits on each son would require adjustments to allow for the time value of money. It is sufficient for the court to accept that the judgments that Mrs Mace made concerning the proper and fair disposition of her property were rational and fair, at least to her own mind, and her actions were not inconsistent with the ordinary motives on which ordinary persons act. 8. The evidence concerning Mrs Mace's mental and physical condition at the time of the transfer of the Property, following the consequences of her fall in 2006, does not justify a finding that any of Mrs Mace's children were in a position of ascendancy over her, such that they were able unduly to influence her to make a gift of her property in their favour. 9. The most objective evidence is that given by her two general practitioners, neither of which supports the view that Mrs Mace had lost her mental acuity or capacity to initiate decisions by herself and in her own interests. Putting aside the evidence they gave concerning Mrs Mace's physical dependence, Dr Weekes said that "although she was mildly depressed because of the loss of her independence…her thinking seemed to be quite rational when I last saw her". Dr Harnett said that she did not diagnose Mrs Mace with depression and: "I could not say that she was in a position to be unduly influenced by her son at that time. She certainly had mental capacity when first seen to understand a transfer of real estate arrangement". 10. Mrs Mace's solicitor, Ms Soszyn, also gave independent evidence in which she strongly stated her conclusion that, although Mrs Mace was physically frail, she was mentally robust, alert, attentive and coherent. Ms Soszyn was entirely satisfied that Mrs Mace was implementing a transaction of her own choosing, and that accorded with her own desires. I accept Ms Soszyn's evidence. 11. The lay evidence given by Glenn Mace and his wife concerning Mrs Mace's mental and physical condition at the time she transferred the Property to Glenn is consistent with the evidence given by the two doctors and the solicitor. 12. The evidence of Brett Mace and his wife went further than that given by the doctors and the solicitor, and the other lay witnesses, to suggest that Mrs Mace had become incompetent in understanding transactions and dealing with her affairs. That evidence was self-interested. It would go too far to conclude that Brett Mace and his wife had fabricated the evidence, but I am persuaded that their recollections have been influenced by self-interest. There is no objective evidence to support their assertions that Mrs Mace had lost her mental acuity or independence, and I prefer the contrary evidence given by the doctors, Ms Soszyn, and Glenn Mace and his wife. 13. The witnesses' evidence was consistent concerning Mrs Mace's physical frailty, her lack of mobility, and the consequent frustration, and her need to rely upon her family in relation to a great many of her daily needs. I have outlined that evidence above. 14. Mrs Mace's declining physical circumstances probably did make her reliant in many significant ways on the assistance that she was given by her family. Brett Mace's case concedes that Mrs Mace was no more dependent upon Glenn than she was upon him, and that both they, and their wives, in a broadly equivalent way provided physical assistance to their mother. 15. The effect of Mrs Mace needing to place substantial reliance on physical assistance from both of her sons' families may have been to put both in a position where they could have exercised some degree of ascendancy or influence over her, but as I am satisfied that she maintained her mental acuity and independence, she was in a position to receive the physical assistance that she needed from one son and his family, if she was unsatisfied with the conditions upon which the other son and his family were prepared to provide physical assistance to her. Put another way, provided Mrs Mace maintained her own mental independence, the fact that she was physically reliant upon two sons, each of whom could provide her the physical assistance that she needed, would have limited the capacity of the other to exercise ascendancy or influence over her merely because of her need for physical assistance. 16. I should say that there is no evidence at all that supports any positive finding that either son, or his family, attempted to gain any advantage by placing any conditions on the physical assistance that he or they were prepared to give to Mrs Mace. On the contrary, the family appears to have been a loving one, at least with regards to Mrs Mace, and did all that they reasonably could to provide her with the support in her old age to which she was entitled. 17. I do not consider that these findings are undermined by odd pieces of evidence concerning inappropriate conduct by Glenn Mace, such as the one occasion some years previously when he had apparently been violent towards his wife, and been arrested, and his alleged conduct in bullying Brett Mace when the two were boys. I do not accept that Glenn Mace physically overbore his mother in any relevant way. 18. I find that Mrs Mace's decision to transfer the title to the Property to Glenn Mace as a gift was made of her own free will. The decision to transfer the property was the culmination of an intention that Mrs Mace had manifested from as early as her 23 August 2000 will, that Glenn would get the Property to the exclusion of Brett. The incremental effect of the transfer during Mrs Mace's lifetime was to accelerate the making of the gift. I am satisfied that Mrs Mace decided that that was an appropriate step for her to take, given the continuation of Glenn Mace's maintenance and upkeep of both the Property and the Villa. Mrs Mace was entirely confident that her continued accommodation at the Villa, in the years remaining when she was capable of living there by herself, was entirely secure in practical terms, even though she did not have any legal tenure. The making of the gift of the Property to Glenn allowed her during her lifetime to experience the evening up of the benefits she had bestowed on her two sons. 19. In relation to Ms Soszyn's involvement in the transaction, I have accepted her evidence in support of my finding that the making of the gift of the Property was not a result of the exercise of any ascendancy that Glenn Mace had over Mrs Mace as a result of his special relationship with her. 20. It is therefore not strictly necessary for me to form an opinion on the issue of whether, had there been an exercise of undue influence, Ms Soszyn's advice would have been an effective "antidote" to the exercise of undue influence. Given the other findings I have made concerning the continuation of Mrs Mace's mental acuity and independence, it would be an entirely artificial exercise for me to make the assumptions necessary to create notional circumstances of the exercise of undue influence, solely for the purpose of addressing conceptually whether the advice given by Ms Soszyn would have been sufficient to preserve the effectiveness of the gift. 21. The fact is that Ms Soszyn satisfied herself that Mrs Mace was fully capable of deciding what she wanted to do with her own property, and that she had made an independent decision to do so. Ms Soszyn took some time to satisfy herself of those matters, and then gave advice to Mrs Mace, and acted for her in the implementation of the transaction, on the basis that it was her duty to provide advice that protected Mrs Mace on the basis that she was a rational client acting in her own interests. Unconscionable conduct 1. In final submissions, Brett Mace maintained his submission that, even if his undue influence case failed, he was entitled to succeed on the basis that the gift of the Property should be set aside on the basis that it was unconscionable for Glenn to accept the gift of the Property because of his awareness of Mrs Mace's vulnerability to and dependence upon him. 2. Brett Mace only faintly pressed this claim, and did not develop any substantial argument as to how the unconscionable conduct claim could succeed, if the undue influence claim failed. 3. In the circumstances of my findings in this case, the undue influence claim has failed entirely, because I have found that Mrs Mace acted in accordance with her own wishes, while fully capable and mentally acute, and that she implemented a transaction that was consistent with her long-term intentions, and supported by rational considerations that she believed were important in her dealing fairly and equally with her two sons. 4. The alternative claim based upon unconscionable conduct must therefore necessarily fail. 5. In principle an order should be made that Brett Mace pay Glenn Mace's costs of the proceedings. However, I will hear the parties concerning the appropriate costs order, as a number of affidavits were prepared by the parties that were not received into evidence. Orders 1. It is therefore appropriate for me to make the following orders: 1. I order that the plaintiff's claim be dismissed. 2. I 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. ********** 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: 16 November 2015