What does Undue Influence look like?

Yesterday we discussed a case where family members argued that their elderly relative was influenced in her decision to make a new Will by her neighbours.Undue influence is difficult to prove in Court as it must be shown that the Will maker did not intend and desire to make the Will, but was coerced into making it.

Vera Simpson died in September 2005 aged 102. Vera lived in Elizabeth Jenkins Place an Aged Care Facility run by the Salvation Army for the last 8 years of her life.

In September 1999 Vera made a will appointing the financial secretary of the Salvation Army (NSW) Property Trust as her executor and leaving the whole of her estate for the use and benefit of the Elizabeth Jenkins Place aged care facility. Peter Holley, the financial secretary of the Salvation Army (NSW) Property Trust was granted Probate in October 2006.

David Dickman first met Vera when he was 19 and she was about 63. They developed a close relationship that they both considered to be like mother and son. David provided assistance to Vera in a range of matters including maintenance and repairs around her House, and arranging and taking her to medical appointments.

David continued to visit Vera regularly after she moved into Elizabeth Jenkins Place; in August 1997 Vera gave David her power of attorney. In June 1998, at Vera’s request, David prepared a handwritten will using a will kit form; Vera signed that document in the presence of two attesting witnesses. Subsequently, in September 1998 Vera had her solicitor make a Will appointing David as executor and leaving the estate to him.

In September 1999 Vera had a conversation with David stating that she believed people at the Salvation Army wanted her to move to an associated nursing home. It would appear that members of the management of Elizabeth Jenkins Place had said something that made Vera concerned that her security at the hostel was at risk because of unpaid fees even though her fees were up to date.

Vera made two Wills on the 10th and 14th. of September leaving her estate to the Salvation Army and to Elizabeth Jenkins Place respectively. A Solicitor contacted by the Salvation Army, whose clients included the Salvation Army (NSW) Property Trust, drafted the Wills.

Vera’s family and her neighbours got an order from the Guardianship tribunal that the Public Guardian manage her affairs. Vera signed a statement in support of the application made on her behalf to the Local Court for an Apprehended Violence Order against David stating that she was frightened of him and no longer wanted to have contact.

David spoke to Vera only once after this when she telephoned him asking why he hadn’t visited her. David explained that

There was a court which stopped me seeing you and you said you didn’t want to see me in the court documents. Your affairs were taken over and I had to get permission to see you and I haven’t been given permission to see you. Also I was threatened with physical violence… if I came near you again.

David believed that Vera was still unstable and that she had lost mental capacity.

When Vera died the principal asset of the estate was a house in Mona Vale. The house was sold, after payment of debts, funeral and testamentary expenses, $732,133.76 was paid to the Salvation Army on and prior to 5 December 2006.

David commenced proceedings in July 2010 seeking the revocation of the grant of probate made on 5 October 2006 and a grant of probate to him as executor of the will of 23 September 1998.

The Court agreed that Vera lacked testamentary capacity at the time she made her will of 10th & 14th of September 1999. That there were suspicious circumstances surrounding the execution of that will, that Vera didn’t know and therefore couldn’t approved of the contents of that Will, and,  that it was procured through the undue influence of her neighbours or of officers of the Salvation Army, including the management of Elizabeth Jenkins Place, or both.

The involvement of the Salvation Army’s solicitor,  management of Elizabeth Jenkins Place, and the suggestion made to Mrs Simpson that her place in the home was in jeopardy because of non-payment of fees, raises the doctrine of suspicious circumstances.

Peter Holley as executor had to reimburse the estate that had been distributed to the Salvation Army (NSW) Property Trust.


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