Estate of Nitopi (No 2) [2021] NSWSC 748

Estate of Nitopi (No 2) [2021] NSWSC 748

The deceased was in a position of special disadvantage in his dealings with Cristina from November 2008 because diagnosed dementia, cognitive difficulties, inability to live independently, vulnerability, pain and impaired judgment seriously affected his ability to protect his interests. Cristina was not proven to have notice before June 2009, but her own evidence about seeing him confused, bedridden and vulnerable at Redleaf Manor established notice from June 2009. The equitable presumption of unconscientious advantage therefore applied to the six payments made after June 2009, and Cristina did not rebut it with reliable evidence that the payments were fair, just and reasonable. The claim...

Jurisdiction
Australia
Judgment Date
25 June 2021
Procedural Posture
Equity Proceedings by a Beneficiary Representing the Estate Seeking Recovery of Payments Made by the Deceased to a Daughter on the Basis of Unconscionable Conduct / Principal Judgment After Hearing; Form of Final Orders, Interest and Costs Stood Over
Outcome
Plaintiff succeeded in respect of the six payments made to Cristina between June 2009 and June 2010 and failed in respect of the six payments made before June 2009; proceedings adjourned for orders, interest and costs.
Legal Topics
['special Disability or Disadvantage' 'notice of Special Disadvantage' 'presumption of Unconscionability' 'gifts by Elderly Parent' 'estate Recovery of Payments' 'capacity and Cognitive Impairment']
['equity' 'succession' 'unconscionable Conduct'] ['special Disability or Disadvantage' 'notice of Special Disadvantage' 'presumption of Unconscionability' 'gifts by Elderly Parent' 'estate Recovery of Payments' 'capacity and Cognitive Impairment']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Proceedings by a Beneficiary Representing the Estate Seeking Recovery of Payments Made by the Deceased to a Daughter on the Basis of Unconscionable Conduct / Principal Judgment After Hearing; Form of Final Orders, Interest and Costs Stood Over

Legal Issues

  1. 1 ['Whether the deceased was subject to a special disadvantage in his dealings with Cristina when payments were made to her.' "Whether Cristina knew or ought to have known of the deceased's special disadvantage." 'Whether the payments made to Cristina after she was on notice were presumed to be unconscientious and whether that presumption was rebutted.' "Whether the plaintiff's equitable claim failed for payments made before the relevant special disadvantage or notice was established."]

Ratio Decidendi

The deceased was in a position of special disadvantage in his dealings with Cristina from November 2008 because diagnosed dementia, cognitive difficulties, inability to live independently, vulnerability, pain and impaired judgment seriously affected his ability to protect his interests. Cristina was not proven to have notice before June 2009, but her own evidence about seeing him confused, bedridden and vulnerable at Redleaf Manor established notice from June 2009. The equitable presumption of unconscientious advantage therefore applied to the six payments made after June 2009, and Cristina did not rebut it with reliable evidence that the payments were fair, just and reasonable. The claim...

Court Disposition

Plaintiff succeeded in respect of the six payments made to Cristina between June 2009 and June 2010 and failed in respect of the six payments made before June 2009; proceedings adjourned for orders, interest and costs.

Orders

  • ['Adjourn the proceedings to 9.30 am on 12 July 2021 or such other time as may be arranged with my Associate.' 'Direct that the parties confer on the form of orders to be made to give effect to this judgment and to deal with costs, and, no later than 24 hours before the adjourned hearing, submit proposed orders for...