Bridgewater & Ors v Leahy, York & Anor

[1997] QCA 36

Queensland Court of Appeal

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Interrogate

Catchwords

1. Equity
2. › Unconscionable conduct
3. › Special disability
4. › Whether elderly donor under special disability vis-à-vis donee nephew
5. › Whether inability to judge own interests established
6. › Whether exploitative conduct by stronger party
1. Equity
2. › Undue influence
3. › Presumption of undue influence
4. › Whether relationship between uncle and nephew sufficient to raise presumption
5. › Whether gift was free and voluntary act of donor
1. Equity
2. › Gifts
3. › Inter vivos gifts by elderly persons
4. › Deed of gift forgiving substantial purchase price
5. › Whether gift voidable for unconscionability
6. › Relevance of prior testamentary disposition to same effect
1. Wills, Probate and Administration
2. › Actions by beneficiaries
3. › Standing of beneficiaries to sue on behalf of estate
4. › Where executor declines to bring action
5. › Whether leave may be granted nunc pro tunc
6. › Succession Act 1981 (Qld), s 49(2)

Quick Take

Leave under s 49(2) of the Succession Act 1981 (Qld) for beneficiaries to bring actions on behalf of a deceased estate may be granted nunc pro tunc where the executor has declined to bring an action that it would have been proper for the executor to bring. In assessing unconscionability claims concerning inter vivos gifts by elderly persons, the existence of a prior unchallenged testamentary disposition to the same effect is a significant factor supporting the donor's independence and the voluntariness of the gift.