The presumption of undue influence can be complex. Enduring Powers of Attorney (EPOA”) allow a person (“the principal”) to appoint an attorney to make decisions for the principal in relation to health matters, personal matters and/or financial matters. They are vital documents, particularly in circumstances where the principal has lost their capacity to make decisions.
However, attorneys need to be aware that they owe serious legal duties to the principal, and need to take precautions when entering into transactions with the principal. This is especially so when the principal is elderly or in some way dependant upon their attorney.
The Queensland Supreme Court case of Baker & Ors v Affoo & Ors  QSC 46 is a clear example of the risks involved.
The facts of the case involved a lengthy, complex and interesting history between the applicants (“the Bakers”) and the respondents (“the Affoos”).
At the age of 89, the late Edward (“Ted”) Blair (deceased) transferred his beloved Kilcoy farm (“the Property”) to a trust (Somerset View Trust), to benefit his close friend and neighbour William (“Bill”) Affoo. The property was transferred over two separate transactions to Bill’s two sons, Shaune and Christopher, as Trustees of the Somerset View Trust. During this time however, Bill had been appointed attorney under an enduring power of attorney for Ted.
Around the same time of the transfer, Ted prepared a new will where he gave only $200 to each of his three children, with the residue of the estate going to Bill. Bill and his wife Rhonda were appointed executors to the estate. This new will was prepared without the knowledge of Ted’s children. Ted’s apparent intent was to keep his estate out of the hands of his children, and to prevent a family provision claim, effectively leaving the Estate with Bill and Rhonda.
Ted’s children, the Bakers, commenced an Application against the Affoos, arguing that the transfer of the Property by Ted was as a result of Bill’s “undue influence” under the Enduring Power of Attorney.
In these circumstances, property had been transferred from a principal to a relative of an attorney.
Section 87 of the Powers of Attorney Act 1998 (Qld) presumes that undue influence occurs where a transaction occurs between a principal and his/her attorney (or a relation, business associate or close friend of the attorney). That is, it is presumed there was a use of power or influence to pressure the principal into entering a transaction.
The court considered whether the Affoos were able to rebut the section 87 presumption of undue influence.
The Hon Justice Jackson found that despite some evidence being put toward as to Ted’s capacity and intentions at the time, the respondents were unable to rebut the section 87 presumption of undue influence and, on that basis, ordered:
- a constructive trust (court imposed trust order) be declared over the Property;
- the trustees Christopher and Shaun transfer the property to the executors of the estate; and
- the respondents pay the applicants’ costs.
The matter was adjourned for a further hearing in relation to the Family Provision Claim argument.
Our Concluding Remarks regarding Undue Influence
It is possible that in Bill’s mind, in accepting the gift of the property from Ted he was acting in a manner which Bill believed to reflect the interests and wishes of his best friend Ted and that there was no attempt to exert undue influence. There was evidence that Ted had the intention to disinherit his children for several years prior to his death, however due to his age and dependence upon Bill, among other things, the Affoos were not able to satisfy the court that undue influence had not occurred.
The presumption of undue influence is not the only provision under the Powers of Attorney Act 1998 (Qld) that attorneys should be aware of. There are many other provisions that attorneys should consider when exercising their powers for health, personal and financial matters.
Failure for an attorney to properly consider their duties and requirements, especially in sensitive circumstances such as in Baker & Ors v Affoo & Ors  QSC 46, may expose the attorney to risks of litigation. In this regard, attorneys should prioritise seeking independent legal advice.
For more information regarding EPOA & Undue Influence:
- an Enduring Power of Attorney, whether it be obtaining one or understanding your duties and requirements; or
- if you have concerns that a loved one has been unduly influenced;