Facts: Three years before he died, Mr Buttress transferred his only asset, land and a cottage, to Mrs Johnson (a relative by marriage; a relative of his late wife) as a gift. B had known J for more than 20 years and became closer to her after his wife’s death. He relied on her for advice on business matters. At the time of the transfer, B was 67 years old and ‘peculiarly dependent upon others.’ He was ‘wholly illiterate, not very intelligent, and of little or no experience or capacity in business’ and when he executed the transfer he did not understand it was irrevocable. B did not obtain independent legal advice in relation to the transfer.
Held: The gift was set aside for undue influence.
Held (majority): It fell within the second subcategory of presumed influence (i.e. the nature of the relationship). The onus was on Mrs Johnson, the stronger party, to rebut this assumption, but she wasn’t able to do it.
Held (minority): It was an actual undue influence.
Held (majority - Dixon J at [137-8]): ‘Little doubt can be felt that ultimately [Mr Buttress] came so to depend upon Mrs. Johnson that a full relation of influence over him subsisted. ... [W]hen the circumstances of the case are considered with the character and capacity of Buttress they lead to the conclusion that an antecedent relation of influence existed which throws upon Mrs. Johnson the burden of justifying the transfer by showing that it was the result of the free exercise of the donor's independent will. This, in my opinion, she has quite failed to do.’