‘Undue influence’: Nephew must repay $1.5m

• Published date: 16 September 2023
• Author: Ethan Griffiths Open Justice
• Publication title: Weekend Herald

The man netted the money from the sale of her home, as well as $38,000 in ATM withdrawals using the woman’s bank card, all of which he claimed she had agreed to

In an anonymised decision of the Family Court from May, released to the public this week, Judge Kevin Muir ruled the nephew, who had enduring power of attorney over his aunt’s affairs, acted outside those responsibilities.

The findings are being appealed in the High Court.

According to the decision, Martha*, the elderly North Island woman at the centre of the case, was born in the 1920s. Her husband died in the 1980s and she lived alone until she was placed in care in 2020. She had no children but, over at least the previous decade, was cared for by her nephew, Simon*.

She had multiple properties to her name.

In 2014, a doctor first documented Martha’s apparent mental decline. A psychogeriatrician who gave evidence to the court said a diagnosis of dementia could have been made in 2014, but it wasn’t.

An enduring power of attorney was put in place in May 2014, with Simon becoming her attorney with respect to property and welfare.

Over the following years, Simon pocketed a significant amount of money from his aunt. Money from a property sale of more than $1.3m was “gifted” to him.

Between 2015 and 2020, he withdrew more than $90,000 from four ATMs. He said the withdrawals were approved by his aunt, who accompanied him “the majority of the time”.

Further bank transfers in the tens of thousands were also made, although some of this was repaid. Simon also claimed his aunt gifted him $81,000.

He further deducted close to $34,000 from his aunt’s account for the running costs of two vehicles. One was for his sons, while he drove another car previously owned by Martha. He claimed she gifted the cars and future running costs.

Simon used nearly $5000 to buy a fridge, tools, accommodation at a Coromandel resort and pay rates bill penalties.

Simon, whose sister brought the Family Court case against him, told the court their aunt had remained competent to manage her affairs until May 2020, when she was certified as having “severe dementia” and was formally deemed mentally incapable of doing so. All payments and withdrawals were made with her agreement, Simon claimed.

But the decision noted multiple occasions between 2015 and 2020 where Martha’s mental capability was called into question. Judge Muir said that, over that period, she became “increasingly confused and forgetful”.

Simon said that, over the previous...