Mary has been granted power of attorney by her husband Sam who is now suffering from dementia. Mary herself is suffering from a terminal illness. Believing that she is acting in accordance with Sam's wishes, and under pressure to refinance debt, Mary transfers the property to her son Michael who has been working on the property. By doing so she deprives her husband of all his real property and in turn, deprives his son from his first marriage (Peter) of any interest in his father's real property that he would have received under his father's will.

Mary seeks legal advice before doing the transfer and is not advised that to do what she intends is contrary to the duty she has as attorney to Sam, and not authorised as required by the Power of Attorney Act 2003(NSW). Michael was told by Mary that she was doing what his father would have wanted and that it was necessary in order to refinance.

When Peter discovers that Michael is now the registered proprietor of the property, he seeks an order on behalf of his father that Michael holds the property as constructive trustee for Sam.

Will Peter's action succeed?