A VCAT determination as to a person's capacity cannot be admitted under s 91 of the Evidence Act 2008 (Vic) to prove that the person was or was not under a special disadvantage at the time of an inter vivos transfer; the court must make that determination itself. The presumption of undue influence arising from a carer-parent relationship can be rebutted by evidence of medical certificates as to capacity obtained before the transfer, independent witnessing of the transaction, the donor's own correspondence demonstrating understanding of the transaction, and the obtaining of independent legal advice. The question whether a potential beneficiary under a will has standing to challenge an inter vivos disposition procured by undue influence remains open in Victoria.
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