Misek v McBride

The case of Misek v McBride involved a claim by the plaintiff, a grandchild of the deceased, who sought equitable relief under the Succession Act 2006 and in equity. The deceased had left her entire estate to her daughter, the defendant, who was also the executor of the will. The deceased’s son had predeceased her, leaving four children, one of whom was the plaintiff. The plaintiff claimed that she had been left without adequate provision for her proper maintenance, education, and advancement in life, and sought an appropriate provision from the deceased’s estate. Additionally, the plaintiff alleged that the defendant held her interest in the deceased’s estate on secret trust to the extent of 20 per cent, and that the daughter breached her fiduciary duty to her mother by using an enduring power of attorney to loan money to herself to acquire property.

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.