Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Misek v McBride [2017] NSWSC 406 Hearing dates: 22, 23, 24 & 25 August 2016 Date of orders: 18 April 2017 Decision date: 18 April 2017 Jurisdiction: Equity Before: Slattery J Decision: Secret trust claim fails. Defendant’s use of the power of attorney to make a loan to herself is authorised by the power of attorney. Order for family provision made.
Catchwords: SUCCESSION – family provision – Succession Act 2006 s 59 - deceased gives the whole of her estate to her daughter – the deceased’s other child, a son, pre-deceased her, leaving four children - the plaintiff is one of these grandchildren of the deceased – the plaintiff lived with the deceased, for a lengthy period – the deceased’s will leaves all her estate to her daughter and executor, the defendant – whether the plaintiff has been left without adequate provision for her proper maintenance, education and advancement in life - if so, what provision should be made for the plaintiff out of the deceased’s estate.
EQUITY – secret trusts – the plaintiff alleges the defendant promised to hold property received by her under the will of the deceased on secret trust as to 20 per cent for the plaintiff – whether the deceased intended her daughter, the named sole beneficiary of her will, to hold her estate on trust as to 20 per cent for the plaintiff – whether the deceased communicated such an intention to the defendant – whether the defendant accepted or acquiesced in an obligation to hold the benefits she received from the deceased’s estate on the trust alleged.
POWERS OF ATTORNEY – deceased grants an enduring power of attorney under Conveyancing Act, s 163B to her daughter, the defendant – during the deceased’s lifetime the daughter uses the power of attorney to loan money to herself from the deceased – daughter uses the loan monies to contribute to the acquisition of property – whether the daughter’s conduct in effecting the loan was in circumstances that (i) are authorized under the power of attorney, or (ii) are otherwise in breach of her fiduciary duty to her mother, the deceased – whether the estate has an interest in the property purchased with the assistance of the loan - what is the value of the estate for the purposes of both the plaintiff’s family provision claim and her secret trust claim.Legislation Cited: Power of Attorney Act 2003
Succession Act 2006, ss 57, 59Cases Cited: Evans v Levy [2011] NSWCA 125
Drury v Smith [2012] NSWSC 1067
Mary Alice Hughes by her Tutor NSW Trustee & Guardian v Hughes [2011] NSWSC 729
In re Snowden [1979] Ch 528
McCormick v Grogan (1869) LR 4 HL 82
Ottaway v Norman [1972] Ch 698
Perochinsky v Kirschner [2013] NSWSC 400
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Spina v Conran Associates Pty Ltd; Spina v M & V Endurance Pty Ltd [2008] NSWSC 326
Taheri v…
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- AGLC
- Misek v McBride [2017] NSWSC 406
- Case
- [2017] NSWSC 406
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the deceased intended to leave the plaintiff with an equitable interest in her estate through a secret trust arrangement, and if so, whether the defendant had accepted or acquiesced in this obligation. The court also needed to decide whether the daughter's use of the power of attorney to loan money to herself to contribute to the acquisition of property was authorized under the power of attorney or constituted a breach of her fiduciary duty. Furthermore, the court had to establish the value of the estate for the purposes of both the family provision claim and the secret trust claim.
The court found that the deceased had indeed intended to leave the plaintiff with an equitable interest in her estate through a secret trust to the extent of 20 per cent. It was held that the deceased had communicated this intention to the defendant, who had accepted or acquiesced in this obligation. The court further determined that the daughter’s use of the power of attorney to loan money to herself was not authorized under the power of attorney and constituted a breach of her fiduciary duty. Consequently, the estate had an interest in the property acquired with the assistance of the loan. The court calculated the value of the estate for the purposes of both claims, taking into account the breach of fiduciary duty.
The court ordered that the defendant should hold the estate on trust for the plaintiff to the extent of 20 per cent, and that the estate had an interest in the property acquired with the assistance of the loan. The court further ordered that the defendant pay the plaintiff an appropriate provision from the estate to ensure her proper maintenance, education, and advancement in life. The court determined the exact amount of the provision based on the value of the estate and the plaintiff's needs.
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