BAR-MORDECAI v HILLSTON [2004] NSWCA 65

BAR-MORDECAI v HILLSTON [2004] NSWCA 65

In relation to the property at Eastbourne Avenue, Clovelly, the appellant rebutted the presumption of undue influence; the gift was the independent act of the deceased based on full information in context of their de facto relationship. As to other gifts (including the surgery), the appellant did not rebut the...

Source-derived case information.

Parties
Appellant: Michael Bar-Mordecai; Respondent: Allan Hillston
Jurisdiction
Australia
Judgment Date
17 March 2004
Procedural Posture
Appeal / Judgment
Outcome
Appeal in undue influence proceedings upheld in part; appeals in family provision and probate proceedings dismissed with costs; motion to admit further evidence dismissed with costs.
Legal Topics
Undue Influence, Doctor Patient Relationship, De Facto Relationship, Family Provision Eligibility, Extension of Time, Administrator Misconduct
Equity Family Provision Probate Undue Influence Doctor Patient Relationship De Facto Relationship Family Provision Eligibility Extension of Time +1 more

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Summary, issues, holding and outcome

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Parties

Michael Bar-Mordecai

Appellant

Allan Hillston

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether gifts to appellant were products of undue influence in a doctor-patient relationship
  2. 2 Whether appellant was an 'eligible person' under the Family Provision Act 1982 as a de facto husband
  3. 3 Whether extension of time for family provision claim should be granted

Ratio Decidendi

In relation to the property at Eastbourne Avenue, Clovelly, the appellant rebutted the presumption of undue influence; the gift was the independent act of the deceased based on full information in context of their de facto relationship. As to other gifts (including the surgery), the appellant did not rebut the presumption and undue influence was the true explanation. The appellant was an 'eligible person' as defined by the Family Provision Act but the extension of time for application was properly refused due to failure to demonstrate sufficient cause. The probate proceedings were correctly dismissed as no misconduct was established.

Court Disposition

Appeal in undue influence proceedings upheld in part; appeals in family provision and probate proceedings dismissed with costs; motion to admit further evidence dismissed with costs.

Orders

  • Motion to admit further evidence dismissed with costs.
  • Appeal in the undue influence proceedings upheld in part; orders in relation to the property at Eastbourne Avenue Clovelly set aside.