The High Price of Proof

Published in the Coffs Coast News Of The Area on 14 November 2025.

Sally and Harry have been married for 25 years.

Sally transfers her home into joint names with Harry as “joint tenants”.

Five years later, Sally is moved into a care facility and passes-away two years later at the age of 85.

Sally leaves a daughter from a previous relationship, Penny.

When Penny discovers that as a result of the transfer of Sally’s home into joint names with Harry, that he will now obtain sole title to the property. Penny seeks to overturn the transfer.

Penny claims undue influence at the hands of Harry and alleges unconscionable conduct.

The Court hears that just prior to the transfer of the property into joint names, Sally made a new will, removing Harry as a beneficiary. There is also evidence that Sally intended to divorce Harry.

Evidence is adduced that at the time of the transfer of the property, Harry “did all the talking and had a fairly direct tone in his voice”. There is no evidence that Sally received legal advice as to the effect of the transfer of the property.

It comes to light that shortly after the transfer of the property, Sally was diagnosed with early onset dementia and was observed by her treating physician as “vacant and confused”.

However, the Court notes that there is no evidence that Harry was ever aggressive or overbearing towards Sally and that Penny must prove that Harry exercised actual undue influence over Sally, to be successful in her claim.

The Court states that there is no clear evidence that Sally was suffering a medical impediment at the time of the transfer.

The Court ultimately rules that Penny did not have sufficient evidence to discharge her “onus of proof”.

Penny’s claim is dismissed and she is ordered to pay her own legal costs as well as Harry’s legal costs.

This scenario demonstrates the importance of understanding the crucial difference between owning real estate as joint tenants or tenants in common, a distinction which is often misunderstood and often not addressed properly in estate planning as a whole.

This fictional column is not legal advice.