Published in the Coffs Coast Advocate on 20 June 2015.
Nadia is a 75-year-old widow. She came to Australia in 1970 and is unable to read or write English. She also has difficulties understanding spoken English.
Ten years ago, Nadia was involved in a motor vehicle accident and suffered significant injuries for which she received $50,000 in compensation.
Five years ago, Nadia’s daughter, Samantha asked her to sign a document that she said was to enable her to act as her carer. Nadia signed the document. Nadia also gave authority to Samantha to access her bank accounts.
Samantha and her partner moved into Nadia’s home briefly before tensions arose. After a friend suggested to Nadia that she seek legal advice, she consulted a solicitor.
The solicitor conducted a title search and discovered that Nadia was no longer the owner of her home and that Samantha was in fact recorded on title as the sole owner.
The solicitor was also instrumental in discovering substantial sums missing from the account holding Nadia’s compensation.
Nadia’s solicitor commenced proceedings in the Supreme Court of New South Wales seeking orders that Nadia recover ownership of the home.
The evidence accepted by the court, was that Samantha asked Nadia to sign a document, which she claimed would allow her to “look after her”. In fact, the document that Nadia signed was a transfer which had the legal effect of transferring title in Nadia’s home to Samantha. The transfer that Nadia signed, also stated that she received the sum of $280,000, despite Nadia receiving nothing.
The court considered Nadia’s claim that she was a victim of undue influence and unconscionable conduct and the court found that Samantha used her “superior position” to take advantage of Nadia’s situation. Nadia’s age, ill-health and illiteracy were relevant factors that placed Samantha in a position of trust and confidence, which gave rise to a presumption of undue influence.
The court found that Samantha had not rebutted the presumption of undue influence and further, that the elements of unconscionable conduct had been established. Nadia ultimately decided not to pursue the funds that had been withdrawn from her compensation account but the Court made orders that the property be transferred back into Nadia’s name. Samantha was also ordered to pay Nadia’s substantial legal costs.
