Those of you who already work with us know we’re not the litigious type. We are always conscious of the cost, stress and delay associated with court actions. Court action takes a big toll on those involved. But sometimes we just have to fight the good fight for the right result.
In our recent landmark win in the NSW Supreme Court, we were acting for two adult sons against their step-mother.
Their father, in his later years after the death of his first wife, went looking for a new wife to keep him company in his old age. Unfortunately, he found Joy.
Joy had been married three times previously, and fell quickly for Mr Smith and his comfortable middle-class retirement. She moved herself into his home from her rented accommodation, and persuaded Mr Smith to marry her.
Suffice to say our clients did not take to the new Mrs Smith or her tendency to control most aspects of their father’s life. They were worried about him getting married so late in life. They were even more worried about his choice in Joy.
But Mr Smith was a careful and canny man, who had always been very proud of his financial position. He made a point of keeping his retirement savings – his $1m share portfolio – in his own name (and therefore separate from Joy). He also owned his own home, which he kept in his own name.
After about 6 years of marital bliss, Mr Smith began exhibiting the first signs of dementia. Around that time, a stoush arose around Mr Smith’s estate planning documents. There were several versions of documents signed in two different solicitors’ offices. The documents ‘commissioned’ by Joy ended up being the final ones signed, in January 2008. The next month, Mr Smith made Joy a joint tenant on the title to his home.
In May 2008, Mr Smith’s health took a turn for the worst when he suffered a stroke. After a stay in hospital and a couple of attempts to go home, he was transferred to a care facility specialising in high-level dementia-specific care. It was at this stage that Joy saw her opportunity, and obtained a letter from Mr Smith’s doctor confirming he had lost mental capacity.
Within weeks, Joy had used the last-man-standing Enduring Power of Attorney (which had, of course, appointed her) to sell half a million dollars’ worth of Mr Smith’s share portfolio. Shortly after the cash came through, Joy’s daughter and son-in-law bought a new house. Coincidence? We thought not. The court agreed.
But Joy wasn’t finished yet.
Joy’s next move was to sell a further chunk of Mr Smith’s shares to build herself a lavish ($250,000) ‘granny flat’ on the property now owned by her daughter and son-in-law. She also needed to finance what had become an extravagant lifestyle without the watchful, conservative eye of Mr Smith. On Joy’s own account, she spent approximately $120,000 on holidays, $140,000 on jewellery, clothes, shoes and handbags, and $60,000 on poker machines. Pretty eye-watering spending, especially for a pensioner.
Finally, Joy sold the home that she and Mr Smith had shared. This provided her the cash boost she needed to keep herself in the manner to which she had become accustomed.
When Mr Smith passed away in May 2012, he had about $60,000 to his name – barely enough to cover another year’s worth of his nursing home fees.
When our clients found out, they were devastated. They had never liked or trusted Joy, but she had betrayed their father beyond their wildest imaginations. Thus began the biggest fight of their lives.
We’ll spare you all the boring court details – it’s nothing like Suits! Joy fought hard, and she had the cash to do it (remember, she had all Mr Smith’s money, some of which she hadn’t yet spent). But our clients never gave up, and trusted us to get the right result.
On 13 April 2017, Justice Lindsay handed down his 134-page opus of a judgment. We won. Our clients had been vindicated.
The judgment was scathing in relation to Joy. The judge noted that “I am conscious that it is no small thing to disbelieve a widow’s testimony” but that, nonetheless, he had “substantial reservations about the truthfulness” of her evidence, and the evidence of her daughter and son-in-law.
If you’re interested, you can read the full judgment here. If the link doesn’t work, a PDF version is available here.
We’re proud of the work we did on this case. More importantly, we’re thrilled with the outcome for our clients. Our clients journeyed with us on the case for almost 6 long, hard years, and the result is a testament to their good-natured resilience. We take our hats off to them.
The judgment saw the whole value of the property that had been purchased in the names of Joy’s daughter and son-in-law put back into the estate for the benefit of our clients. That property recently sold for almost $800,000. A great result.
If you have a ‘good fight’ that needs to be fought, but are not sure how to go about it, please call us on 1300 654 590 or email us.
The information contained in this post is current at the date of editing – 28 March 2023
