Sometimes after an older person dies it becomes apparent that there has been a transfer of property or other assets belonging to the vulnerable older person to another party for nil or less than market value.  Family members not involved in the transaction may wish to explore reversing it.  What remedies are available to the family in these circumstances?

If sufficient proof of wrongdoing is available it may be worth taking action against the offending party to reverse the questionable transaction. The equitable doctrines of undue influence, unconscionable conduct and non est factum may be relevant. Incapacity, mistake and misuse of power of attorney may also be relevant.

Has there been undue influence?  Has there been unconscionable conduct?

Undue Influence

Undue influence arises where an older person’s free will has been overborne by another party.

Certain relationships give rise to a presumption of undue influence such as doctor/patient, solicitor/client and parent/child. In an adult child/elderly parent relationship there is no presumption of undue influence although if the facts indicate a relationship of dependence and trust then undue influence may be inferred. Interestingly s87 Powers of Attorney Act, 1998 (Qld) deems undue influence where an adult child has been appointed their parent’s attorney under an enduring power of attorney or advance health directive.

Power of Attorney

The Powers of Attorney and Agency Act, 1984 (SA) requires a donee, during any period of incapacity to “exercise…powers as attorney with reasonable diligence to protect the interests of the donor…” (section 7). An attorney may have the ability to influence an elderly family member to deal with assets in a manner inconsistent with their wishes expressed in their Will during their lifetime.

Unconscionable Conduct

Unconscionable conduct arises where a party, because of some special disadvantage or disability, has not been able to act in his or her own best interests and it is therefore unconscionable that the stronger party in a transaction retains or enforces the benefit of the transaction.

Non Est Factum

Non est factum (“It is not my deed”) as a defence arises where an older person is mistaken as to the nature of the agreement entered into. This may be relevant if the older person is illiterate or does not speak the language.

If you are concerned that an elderly family member may have been influenced into transferring their assets to another party such that the assets to be distributed under their Will are much less than anticipated then you should seek legal advice to discuss what, if anything, may be done. It will be necessary to fully investigate the transactions which have led to the estate of the deceased family members’ current financial position and make a decision from there.

For further information please contact Emma on 8362 6400 or email Emma Marinucci.  Join our mailing list to receive updates and advice on current issues.

  • Emma Marinucci

    About the author: Emma Marinucci

    Emma commenced practice as a lawyer in 1987 and specialises in wills and deceased matters including disputed wills, contested estates and inheritance claims.

    Emma is a compassionate and skilled lawyer dedicated to her clients. Emma’s sole focus is to ensure that her clients receive the very best outcome possible.

    Call on 8362 6400 or email Emma.

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