The carer and the ‘suspicious’ changes to a dying man’s will

A carer for an elderly Sydney man who was given an ever-increasing share of his assets under changes to his will exerted undue influence over him and the wills were invalid, a court has ruled.

In a decision that sounds the alarm on elder abuse, the Supreme Court examined four wills made by a former CSIRO research scientist who died in 2020, aged 101.

The wills, executed between 2011 and 2019, gradually increased the proportion of his estate that would be given to his carer, Lavinia Williment-Brown, after some smaller gifts were distributed.

The figure rose from 5 per cent in the 2011 will to 21 per cent in 2019. By contrast, the deceased’s two daughters were to receive 20 per cent each in the latter will.

Justice Michael Elkaim said in his decision in November that Williment-Brown had gained access to the deceased’s bank accounts within a few months of starting as his carer.

“[There] seems to have been a rapid development in her influence and a marked inconsistency with the duties of a carer,” Elkaim said.

The court heard Williment-Brown had received almost $60,000 in gifts from the deceased, including a $10,000 Christmas gift and thousands more for a trip to England including $8223 on airfares.

Elkaim said she “spent almost a month on a fully paid trip” to London, “ostensibly to resolve issues concerning the deceased’s pension”. This was “a task which must have been possible from Australia”, the judge said.

The deceased’s original executor, a solicitor, was granted probate of the 2019 will in 2021. Probate confirms the validity of a will and allows the executor to administer the estate according to its terms.

But the deceased’s elder daughter sought to have this revoked and for probate of an earlier will to be granted to her. That will, dated 2009, split the bulk of the estate equally between the two sisters.

The deceased was 100 years old when he made the 2019 will. His wife died in 2003.

He had suffered a head injury when he was hit by a car in 2006 and was diagnosed with mild dementia in 2020.

The retired scientist bought a unit in the harbourside suburb of Longueville on Sydney’s lower north shore in December 2006.

Williment-Brown started working for him in March 2008 when she answered an advertisement for a carer for a “likeable elderly gent”. The judge said her qualifications were “minimal”.

The court heard that Williment-Brown was sacked in September 2010 by the deceased’s then long-term solicitor. She was adamant that the deceased did not instigate this, the judge said.

‘The [carer] ... dominated and dictated the deceased’s life. She controlled his money, and she made his appointments and arrangements.’

In an affidavit filed in the court, the deceased’s former lawyer said: “Percy did not feel confident or comfortable in terminating Lavinia’s employment and asked me to do it for him.

“In giving me these instructions, I observed that Percy looked worried, almost afraid.”

The judge said Williment-Brown was re-employed shortly after.

“About a week after being ‘fired’, the deceased gave the second defendant a $10,000 severance payment,” Elkaim said.

“Six days later, she was back in the deceased’s employ. Within about a year, she had once again taken control of the deceased’s bank accounts.”

The court heard Williment-Brown organised a friend of hers, a real estate agent, to sell the deceased’s family home in Chatswood. This was opposed by his daughters.

The home was sold in October 2008 for $1.23 million.

Elkaim said Williment-Brown was present when each of the four new wills were made, with the help of a new lawyer.

“It can only be a suspicious circumstance that a person increasingly benefiting from a will is present with the [will-maker] … when the wills are made,” the judge said.

The deceased “was frequently in the presence of the second defendant who, in my view, was influencing his life, if not controlling it”, he said.

“I am of the firm view that she was exerting an undue influence upon him.”

Each of the four wills between 2011 and 2019 was invalid because of that undue influence, Elkaim concluded.

He said Williment-Brown had not established “in the light of suspicious circumstances, that the deceased had an unfettered knowledge and approval ... of the wills”.

He emphasised that “coercion does not have to be physical and may be entirely ‘mental’.”

Williment-Brown had “dominated and dictated the deceased’s life” and controlled his money.

“Some of [her] ... actions may well have assisted the deceased, but they also demonstrate her ‘control’ over him.”

Elkaim made orders paving the way for the deceased’s elder daughter to administer the estate in accordance with the 2009 will, which left the bulk of his estate to his daughters.

The deceased was “vulnerable from the start”, he said, pointing to Williment-Brown’s control over his bank accounts and her presence when the new wills were made.

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