Law Report - Looking Out for Elder Abuse

We are thrilled to be contributing a fortnightly 'Law Report' in the local paper, the Branxton Greta Vineyard News. This week marked our first column and we chose to focus on the protection of an integral group in our community, our elders. 

Sadly Elder Abuse is on the rise in New South Wales and based upon statistics supplied by the NSW Elder Abuse Helpline & Resource Unit, financial abuse is one of the most common forms of abuse against older people.

A Queensland case example that demonstrates this issue is Anderson v Anderson [2013] QSC 008 [10/4984] where the Court had to consider whether it was possible to challenge a gift given by a deceased while they were alive. In this case Mrs Anderson died in 2009 aged 81 years. Her main asset was her family home.

Mrs Anderson made a Will in 2007 appointing her son John and his wife as her Executors and leaving her property equally between her sons, John and Malcolm. At the same time she executed an Enduring Power of Attorney, in favour of her son John and his wife.

One year later in 2008, Mrs Anderson executed another Will naming both of her sons as Executors and beneficiaries. At this same time, she signed a Land Transfer form gifting her family home to her son Malcolm. The considering for this Transfer was expressed to be natural love and affection. Mrs Anderson did not receive any money for the property from her son Malcolm. For all intents and purposes, the family home was a gift to Malcolm.

Upon her death, Mrs Anderson’s son John made an application to the Court for a declaration that the transfer of land to Malcolm was void as Mrs Anderson lacked capacity based on evidence of dementia, memory loss and confusion. Further, John argued that Mrs Anderson was under the undue influence of her son Malcolm. 

The Court was required to consider the relationship between Mrs Anderson and Malcolm. It was found that she was frail, isolated and dependent upon Malcolm for day to day care. Malcolm was living with her and in a position of dominance over his mother.

Ultimately the Court found that the execution of the Land Transfer by Mrs Anderson was not the result of a free and voluntary exercise of her independent will. The Court found that Malcolm has unduly influenced his mother to gift him the family home and made orders that the transfer of the family home was set aside.

The story highlights the importance of looking out for any signs of Elder Abuse within our community. The NSW Elder Abuse Helpline and Resource Unit have helpful resources available on their website at www.elderabusehelpline.com.au or you can phone their helpline on 1800 628 221 for more information.