Deed of transfer set aside where it was procured through undue influence

Undue influence - plaintiff, in his capacity as personal representative of the Deceased seeks an order setting aside a Deed of Transfer made by which the deceased transferred his house and lands from his sole name into the joint names of himself and the defendant, his wife - transfer is stated to be “in consideration of the natural love and affection which he bears for his wife – solicitor acted for both sides - duress and/or undue influence - unconscionable bargain - inordinate and inexcusable delay – case settled on day six – executed option agreement before settlement - report from an engineer which confirmed that the area of land to be sold under the settlement agreement was part of the lands comprised in the option agreement – liberty to apply in relation to the settlement – claimed that she did not feely consent of her own volition to sign the settlement agreement - sought orders setting aside the settlement agreement - both sides were agreed that the settlement agreement should be set aside and the trial resumed - relevant legal principles - resulting trusts - undue influence in the context of the plaintiff’s challenge to the Deed of Transfer - undue influence in the context of challenge to the 2005 will and codicil - evidence given at the hearing - terms of the 1991 will - lead-up to the execution of the June 2005 will - circumstances leading to the execution of the 2005 codicil - independent evidence of expert solicitor – evidence of solicitor - validity of the Deed of Trust - challenge to the Deed of Transfer – whether a presumption of undue influence arises – deed of transfer seriously disadvantaged the deceased – whether the presumption of undue influence has been rebutted - Deed of Transfer is not the result of the free and independent exercise of intention on the part of the Deceased - contrary to his understanding of the transaction, the Deed robbed him of the ability to provide for his children out of his very valuable estate - failed to rebut the presumption that the Deed of Transfer was procured by the exercise of undue influence of wife over her husband - alternative case based on alleged unconscionability – not necessary to be determined - challenge to the 2005 will and codicil - proper basis on which to find, on the balance of probabilities that the 2005 will or the subsequent codicil were procured through the undue influence or duress of the Deceased’s daughters - no proper basis to attack the execution of the codicil – no evidence that barrister did anything more than offer a view as to the potential effect of s. 117 of the 1965 Act - interfered in a very direct way in relation to the identity of the executors – deceased made his own decision on the issue – reject the argument that the 2005 will and codicil were procured through the undue influence of barrister or through the undue influence of defendant’s daughters - orders to be made – deed of transfer set aside –