Elder abuse is a prevalent issue in Australia that robs elderly citizens in our community of their independence, dignity and welfare. Elder abuse commonly arises in the form of an adult child taking advantage of the weaknesses and vulnerability of their parent.
What is elder abuse?
Defined broadly, elder abuse encompasses any act that occasions harm to an elderly person for the infringing party’s advantage and control. It is often perpetrated by a trusted individual, usually a family member or adult child, but can also be perpetrated by friends, neighbours, or caregivers.
Elder abuse occurs in many ways and includes:
physical abuse;
emotional abuse (mistreatment and neglect);
social abuse (isolation, limiting contact with friends and family);
psychological abuse;
sexual abuse; and
financial abuse (the most common form).
Case note: McFarlane v McFarlane [2021] VSC 197 (23 April 2021)
This recent Victorian Supreme Court decision highlights the prevalence of elder abuse in Australian society and the relief that may be available for victims of unconscionable conduct and undue influence. It shows that legal practitioners in the realm of wills and estates are commonly exposed to and can even accidentally facilitate elder financial abuse if they do not heed the known warnings signs.
In McFarlane v McFarlane [2021] VSC 197, an intervivos transaction which purported to transfer land from an elderly mother to her adult son was set aside on the grounds of undue influence and unconscionable conduct.
Background
The plaintiff in these proceedings was Judith McFarlane, a 77-year-old woman. On 26 November 2015, Mrs McFarlane signed a document authorising the transfer of her land to her adult son, Mark Farlane, the defendant. This transfer gifted the plaintiff’s home in Glenrowan to her son, with the consideration recorded only as ‘natural love and affection’.
At the time the property was transferred, Mark Farlane was living with the plaintiff at the property and was her primary caregiver. The defendant became the registered proprietor of the property on 4 January 2016 and later that year, in November 2016, Mrs Farlane moved into an aged care facility in Wangaratta as she was no longer able to live independently.
The land transfer documents were prepared by solicitors who neglected to obtain instructions from Mrs McFarlane directly. Instead, they conferred with Mark only, and Mrs McFarlane did not obtain any independent legal advice.
The transfer resulted in Mrs McFarlane’s Centrelink pension payments being significantly reduced by $148 per fortnight. Further, she was charged additional fees by the aged care facility as she was unable to pay the refundable accommodation deposit. In March 2019, the total loss suffered by Mrs McFarlane due to the transfer was calculated to be $128,853.13.
Proceedings
In November 2018, the Victorian Civil and Administrative Tribunal (VCAT) appointed State Trustees Limited as Mrs McFarlane’s administrator. The State Trustees commenced proceedings on Mrs McFarlane’s behalf, claiming that the transfer should be set aside on the basis of unconscionable conduct and undue influence. Alternatively, they sought a declaration that Mark held the property on constructive trust for Mrs McFarlane.
Mark claimed that he shared with his mother a ‘long term loving relationship’ and that his mother had gifted the property to him out of natural love and affection for the support he had shown her. No independent evidence was produced to support these claims.
Conversely, Mrs McFarlane claimed Mark had coerced her into signing the transfer document. She produced evidence that she feared the defendant and believed if she did not sign the document, he would become violent towards her.
The Victorian Supreme Court favoured Mrs McFarlane’s evidence.
Undue Influence
His Honour Richards J discussed that the equitable doctrine of undue influence is engaged in cases where ‘one party occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependence or trust on his [or her] part’ (Johnson v Buttress (1936) 56 CLR 113, 134-135 per Dixon J).
Undue influence can arise from multiple sources and encompasses abuses of confidence, power imbalances and excessive pressure. The Court further discussed that the onus rests with the stronger party to prove that the transaction was ‘an independent and well-understood act of the weaker party’.
The Court found that Mark exercised a position of ascendancy over his mother for the following reasons:
There was a relationship of trust and dependence as they had lived together and Mark was Mrs McFarlane’s sole caregiver;
While Mrs McFarlane was financially independent, she relied on her son to take her to the shops and appointments;
Mrs McFarlane had a history of serious mental illness, including schizophrenia, which reduced her decision-making capacity. She did not receive treatment for her mental health issues as recommended by her general practitioner. The main reason for this was because Mark did not assist her to receive treatment;
Mrs McFarlane feared Mark due to his angry and abusive nature and believed he would threaten her safety if she did not sign the transfer document; and
Mrs McFarlane felt pity towards Mark as his father had abandoned him and felt she could not refuse his requests.
Additionally, the Court considered it was an important factor that the solicitors who drafted the documents did not obtain advice or correspondence directly with Judith.
Judith was also unable to access independent legal advice and did not understand the nature and effect of the transfer on her Will or pension payments.
The Court held the presumption of undue influence arose in the circumstances and that the defendant failed to rebut the presumption. Mark’s evidence was insufficient to establish that Judith entered into the transaction through her free, independent and well-understood act.
The transfer of land was vitiated by undue influence.
Unconscionable Conduct
The Court considered the second issue of whether the transaction constituted unconscionable conduct. Richards J discussed that ‘the essence of unconscionable conduct is that the stronger party exploits some special disadvantage affecting the weaker party’. The stronger party bears the onus of proving that the transaction was fair, just and reasonable.
The Court determined that Mrs McFarlane was in a position of mental, physical and emotional vulnerability which was exploited by the defendant in arranging the transfer of property. Mark was aware of the plaintiff’s vulnerability and stated in a letter, ‘I was the only one there for my mother’. Mrs McFarlane did not receive independent legal or financial advice about the nature and effect of the transaction.
Therefore, Mark failed to demonstrate that the transfer was fair, just and reasonable. The Court held the transfer was vitiated by the defendant’s unconscionable conduct. Mark was ordered to pay equitable compensation to Mrs McFarlane for her loss suffered, the amount being $128,853.13, minus any amount recoverable from Centrelink.
Judgment
The case of McFarlane v McFarlane exhibits significant considerations for family members seeking to transfer property to one another. In particular:
If you are seeking to transfer assets or property between family members, you should ensure each party to the transaction obtains independent legal advice. If the transfer is expected to have financial ramifications, we recommend obtaining financial advice from a financial planner or accountant.
If you believe there are issues regarding the cognitive capacity of a party who may not understand the nature or effect of the transaction, we recommend obtaining a medical report to assess the party’s capacity to enter into the transaction.
If you or someone you love is affected by elder or financial abuse, or you require advice regarding the transfer of assets between family members, please contact a member of our experienced Wills & Estates team to see if we can assist you.
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