Survivors of family violence have reported that the most difficult thing about domestic abuse is not necessarily the physical violence but rather the psychological abuse — the manipulation and surveillance, the gradual isolation from friends and family, the rigid rules, degrading put-downs, humiliation, and threats. These dangerous behaviours perpetrators use to dominate and trap their victims is known as coercive control. Coercive control slowly diminishes the victims’ sense of safety and independence; some report feeling as if they’re being held hostage.
What is Coercive Control?
The concept of coercive control was developed by Professor Evan Stark, a sociologist and forensic social worker, who defined it as a ‘pattern of domination that includes tactics to isolate, degrade, exploit and control’ a person, ‘as well as to frighten them or hurt them physically’. These behaviours are designed to isolate the victim from family, friends, and support networks and to deprive them of independence. Common behaviours of coercive control include:
- monitoring another person’s phone activity;
- monitoring online communications and activities;
- taking control over aspects of everyday life including dictating what clothes can be worn, when to sleep and who to spend time with;
- depriving access to support services including medical professionals;
- denigrating the other person by making comments such as “you are worthless”;
- controlling finances; and
- making threats.
Coercive Control and The Law
In some jurisdictions, including England, Wales and Tasmania, coercive control has been made into a separate criminal offence. This allows for family violence perpetrators to be prosecuted for the non-physical aspects of their abusive behaviour as well as for acts of physical violence such as assaults and sexual assaults.
These developments have prompted a debate as to whether coercive control needs to be made into a separate criminal defence in Australian jurisdictions, how best this could be achieved and what the likely effects would be.
Coercive Control and Elder Abuse
Elder abuse is a form of family violence. The World Health Organisation defines elder abuse as “a single or repeated act or lack of appropriate action occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person”. Elder abuse can include financial, psychological, social, physical, and sexual abuse and neglect. It is common for older people to experience at least two types of abuse at any one time.
In the context of Estate Planning, coercive control and undue influence involves a person using their position of trust or their relationship with the Will maker to influence them to make decisions in their favour, to the detriment of other family members or people in the Will maker’s life. This will generally occur when the Will maker is in a vulnerable position and dependent on others to assist them, for example they may be ill or unable to travel or struggle using technology.
While a Will can be contested if there are allegations of undue influence, the burden of proof will fall on the person alleging that the Will maker was improperly influenced when making their Will.
Nursing and Midwifery Board of Australia v Kumar [2019] VCAT 1099 [26]
In 2015, Lionel Cox, a 92-year-old patient at a residential aged care facility, passed away leaving Abha Anuradha Kumar (Kumar), a registered aged care nurse, his $1.5 million estate in his Will. On 24 September 2019, the Victorian Civil and Administrative Tribunal (VCAT) handed down a five-year disqualification to Kumar after finding that she was “overly involved” in Mr Cox’s affairs, which included the making of the Will that left his estate to Kumar. Whilst VCAT heard the allegations brought forward by the Nursing and Midwifery Board of Australia and ultimately ruled that Kumar had indeed engaged in the ‘most serious’ category of professional misconduct, Kumar was entitled to retain the $1.5 million estate, as VCAT was unable to strike down Mr. Cox’s Will because they lacked jurisdiction in relation to matters concerning Mr Cox’s estate.
In August 2021 the State Trustees brought an action for the revocation of this Will in the Supreme Court, which may see Kumar forced to return the money she received. A final decision is yet to be made.
The case raises concerns about the checks and balances around Wills in Victoria, where there is no law to prevent health professionals and carers becoming executors, beneficiaries or witnesses of their patients’ or clients’ wills. Furthermore, cases like this highlight problems that can occur when relying on home-made Wills using Will-kits, rather than seeing a lawyer.
The benefits of having a Will prepared by an experienced estate planning lawyer are:
- They will ensure that the instructions that they receive from the Will maker are independent and free from any undue influence;
- They will check for signs of incapacity of the Will maker to ensure that they are capable of making sound decisions with respect to their estate;
- They will provide their client with advice in relation to the Will maker’s instructions for persons to be named as executors and beneficiaries in the will, as well as advise on the legal implications of excluding certain people; and
- They will ensure that the Will is compliant with the legislative requirements.
Chiara Nicolaci – Solicitor– Matthies Lawyers
Should you have any queries in regard to estate planning matters, please contact Matthies Lawyers for an obligation-free consultation or call +61 3 8692 2517 today.
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.