In a recent Supreme Court of Victoria proceeding[1] the Court has set aside a transaction transferring a property from mother to son as a gift.

The Court treats matters involving undue influence and unconscionable conduct seriously as this case demonstrates.


  • In late 2015 Judith McFarlane (Judith) gifted her property to her son Mark McFarlane (Mark) with whom she lived. Judith also had a daughter Nicole.
  • The transfer of land was witnessed by a trainee lawyer. Judith never met with a lawyer alone and was always accompanied by Mark.
  • In 2016 Judith moved from the property to an aged care facility and in 2017 the State Trustees were appointed as her administrator.
  • The State Trustees brought the proceedings on Judith’s behalf claiming that the gift of the property was obtained by undue influence and was unconscionable.
  • Judith gave evidence that Mark sometimes withheld her medication, yelled at her and that she was frightened of him. Nicole gave evidence that she had seen Mark push her mother multiple times.

The Court

  •  Undue influence can occur where one party occupies a position of influence or trust over another.
  • In the case of transfer of property which benefits a stronger party, equity may intervene to set aside the transaction, unless it is shown that it was of the weaker party’s free will – ie it was an independent and well-understood act of the weaker party.
  • The Court found that Mark took unfair advantage of his mother’s vulnerability by transferring the property to him as a gift.

The Court:

  • set aside the transfer and returned the property to Judith; and
  • ordered that Mark pay to Judith:
  • the amount of the decrease in her age pension due to the gift;
    • the increased cost of Judith’s accommodation at her nursing home due to her inability to pay a deposit when she moved in; and
    • Judith’s legal costs.

[1] McFarlane v McFarlane [2021] VSC 197

About the Author

Catherine Ballantyne

A business disputes specialist, Catherine is a trusted advisor to businesses and individuals in obtaining successful outcomes. Businesses rely on Catherine as a trusted advisor as well as lawyer in guiding them through complex litigation and disputes.

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