Brown v Barber

The defendant (daughter) succeeded on all issues. The court declared that the defendants by counterclaim (son and daughter-in-law) hold the North Street property on trust for the plaintiff by counterclaim (daughter) and ordered its transfer to her. The court pronounced against the validity of the 2015 will. The 2015 transfer of the property was also set aside on grounds of both undue influence and unconscionable conduct. On costs, the daughter's application for indemnity costs based on Calderbank offers was refused, but a special costs order was made lifting the scale limit for preparation of case. Repeated parental assurances of equal treatment between children over decades, coupled with the promisee's detrimental reliance through financial commitments (lump sum and annual payments, and substantial gifts to their own children), can found proprietary estoppel even where the promisor made occasional inconsistent statements, provided the overall pattern of assurances was sufficient to make it unconscionable to depart from the promise. Where an elderly, legally blind parent is entirely dependent on one child and that child's spouse for care, finances, and social contact — and the parent is isolated from the other child — a presumption of undue influence by ascendancy arises in respect of a gratuitous transfer of the parent's principal asset to the carer-child, which is not rebutted absent independent legal advice or other evidence of free and informed decision-making. Insufficient cognitive testing and the absence of documentation of the testator's understanding of her estate, rationale for excluding a natural object of bounty, and awareness of the consequences of her dispositions, combined with the sole beneficiary's intimate involvement in the will's preparation, constitute suspicious circumstances shifting the onus to the propounder to affirmatively prove testamentary capacity — an onus not discharged by lay evidence of general social competence.