Kavanagh v Londy [2024] QCA 140 (Davis J, Bond JA, and Mitchell AJA concurring) concerning Mary Kavanagh (the deceased), who was 100 years old at the time of her death, childless and lacking any immediate relatives to claim her $2 million estate.
Throughout her life, the deceased had created numerous Wills, all of which, except for her latest one, included Michael Anthony Kavanagh (the plaintiff), whose grandfather was the sibling of the deceased’s father. The plaintiff aimed to enforce an agreement in which the deceased indirectly promised him one property and assured him she would include another in her Will.
Agreement
According to the agreement, the deceased consented to leave a property called Emerald View to the plaintiff. The agreement also involved a donation from the deceased to the plaintiff of $250,000, which he then used to acquire Thagoona House, another property belonging to Mary, for $200,000.
The plaintiff believed that the deceased’s father acted improperly towards his grandfather, resulting in the deceased being unjustly enriched and the plaintiff being deprived of assets he would have otherwise been entitled to. The plaintiff claims that the deceased entered into the agreement in order to rectify that situation.
The executors of the deceased estate challenged the agreement on several grounds, including claims of unconscionable conduct. The Court determined that Mary was in a vulnerable position. She was 96 years old and lacked immediate family when she executed the agreement. The plaintiff was described as ‘a forceful personality,’ and her condition became increasingly frail.
The plaintiff was found to have been aware of the deceased’s disadvantaged situation, as he had known her for many years, was aware of her age, and knew she had outlived her remaining siblings.
The plaintiff told the solicitor on 11 February 2010 that the deceased was acting in a confused manner. In his letter of 10 December 2011 to Stephen Kavanagh, the plaintiff claimed the deceased was showing signs of “steady deterioration both in mind and body”. (at [126])
The plaintiff was discovered to have exploited the deceased’s vulnerable situation. He drafted the agreement independently and had the deceased sign it without consulting her solicitor. Sheridan DCJ acknowledged that Michael was coercing and pressuring the deceased by making a false claim against her (at [127]).
The plaintiff took advantage of the position of the deceased’s disadvantage. He knew that the solicitor acted for her in matters of her estate planning. He had discussed the deceased’s Wills with the Solicitor. However, the plaintiff prepared the Agreement himself and had the deceased sign it without first referring to the solicitor.
Despite the plaintiff’s persistence in pursuing resolution of the historical complaints, as Sheridan DCJ accepted, the plaintiff was coercing and harassing the deceased. The Court declared the agreement void. The plaintiff was ordered to pay $250,000 plus interest to the estate.
Deceased’s last Will
In May 2013, the deceased, accompanied by Mrs Londy, visited her solicitor. The primary purpose of the meeting was to go over a written agreement between the deceased and the plaintiff, along with a payment of $250,000 made as a result of that agreement. The deceased conveyed that she had not consulted a lawyer before signing the agreement and felt coerced and manipulated into doing so. The solicitor informed her that she had the option to seek the recovery of the $250,000, but she decided against taking that action.
Later, the solicitor discussed the deceased’s current Will, which included a portion of the residue allocated to the plaintiff. Given her feelings about the agreement, she named the plaintiff one of her executors. At that point, she chose not to update her Will.
However, by the end of May 2013, she returned to see the solicitor (accompanied by Mrs Londy). She expressed that she had reassessed her situation and wanted to remove the plaintiff as an executor and replace him with Mrs Londy. The deceased aimed to modify the bequests, eliminating the plaintiff’s share of 20% of the residue and transferring it to Mrs. Londy.
The solicitor’s notes reveal that Mrs Londy only spoke when asked a question and did not actively participate in the discussion. The next day, the deceased reaffirmed her desires when she revisited the solicitor (with Mrs Londy) to sign a correctly prepared version of her revised Will. They also discussed whether the plaintiff should inherit her house, as the deceased discussed her sense of duty to do so and her worry that the plaintiff might contest her Will if she excluded this bequest. She aimed to avoid the stress, expense, and uncertainty that could follow her passing.
The deceased also mentioned to the solicitor that the plaintiff had been asking her accountant about her financial matters and consulting local real estate agents regarding the value of her properties, which she found distressing. Mrs Londy later contacted the solicitor concerning an accommodation bond for the deceased. She provided him with a three-page handwritten letter from the deceased detailing her reasons for excluding the plaintiff, witnessed by the deceased’s doctor, who believed the deceased was competent at the time of signing.
Shortly after, on July 31, 2013, the deceased returned to the solicitor to discuss her Will further and was still troubled by the plaintiff’s behaviour. She considered leaving her home to Mr. Byrne should she decide to exclude the plaintiff, but she opted not to change her Will at that time. On August 6, 2013, Mrs Londy called the solicitor to arrange an appointment for the deceased, indicating that she now wished to amend her Will.
The following day, the solicitor contacted the deceased’s general practitioner requesting a report on her testamentary capacity and soon received a clear report affirming that the deceased had the necessary capacity. On August 16, 2013, the deceased, Mrs. Londy, and Mr. Byrne gathered with the solicitor to discuss the deceased’s Will. The solicitor indicated that a detailed affidavit would be necessary to ensure the plaintiff respected the deceased’s wishes.
The deceased had excluded the plaintiff from her most recent Will due to her belief that it was only due to his coercion and exploitation that she included the plaintiff in earlier Wills, stating in a letter to him:
“You really are greedy and lousy, Michael, and I hope my ghost haunts you.”
In Kavanagh v Londy & Ors [2022] QDC 161, the plaintiff contested the validity of the Will, believing that Anne Londy, the named executor of the latest Will, had influenced the deceased. One reason the challenge was unsuccessful was the solicitor’s efforts to ensure everything was appropriately conducted.
Appeal
In Kavanagh v Londy [2024] QCA 140, the plaintiff appealed, asserting that Sheridan DCJ improperly dismissed his evidence and that certain conclusions drawn from the evidence were invalid.
The plaintiff and the deceased entered an Agreement in which the plaintiff would receive $250,000 in cash, purchase Thagoona House for $200,000, and inherit Emerald View through the deceased’s Will.
The cash payment and the sale constituted a ’round-robin’ transaction, allowing the plaintiff to effectively acquire Thagoona House without his actual payment while covering transfer costs.
The plaintiff accepted these advantages as a settlement for all his debts. During court proceedings, the plaintiff’s counsel focused on his forbearance in not suing Mary over past grievances, with no alternative considerations identified in the Agreement.
He also contended that the deceased’s declarations should not carry significant probative value, arguing that the agreement contained sufficient consideration and that neither undue influence nor unconscionable conduct was evident in the case. Furthermore, the plaintiff maintained that signing the agreement would stop the deceased from rescinding or invalidating it.
In the course of his evidence, the solicitor described the plaintiff as a person with an “overbearing personality” and that in his dealings with the deceased, he was
“…determined throughout his dealing with her that things should be the way he wanted them to be”.
Notably, the Court of Appeals found “no substance in any of the matters raised by the plaintiff, and consequently, the appeal should fail.
In dismissing the appeal with costs, Kavanagh v Londy [2024] QCA 140 relied on the evidence the deceased’s solicitor provided. Additionally, the fact that the deceased had engaged the solicitor for her estate planning overall, not merely to draft the Will, permitted him to present a more comprehensive overview of the situation than possible.