Skinner v Frappell - [2007] NSWSC 1241

CITATION: Skinner v Frappell [2007] NSWSC 1241

HEARING DATE(S): 23, 24 and 25 October 2007

JUDGMENT DATE :
25 October 2007

JURISDICTION: Equity Division

JUDGMENT OF: McDougall J at 1

DECISION: See paragraph [85] of judgment

CATCHWORDS: WILLS, PROBATE AND ADMINISTRATION – Plaintiff seeks revocation of grant of probate – Whether execution of proved will procured by undue influence or fraud – Whether first defendant’s interest under proved will subject to secret trust – Whether inference of fraud available to explain change in testamentary intentions – Whether plaintiff has claim under Family Provision Act 1982 – “eligible person” – Emotional dependency – Question of amount of provision if it is to be made.

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Benney v Jones (1990) 23 NSWLR 559 at 561
Petrohilos v Hunter (1991) 25 NSWLR 343 at 346
Re Fulop Deceased (1987) 8 NSWLR 679
Trustees for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136

PARTIES: Anthony Robert Skinner by his tutor Dianne Elizabeth Skinner (Plaintiff)
Helene Marie Frappell (First Defendant)
Leslie Frappell (Second Defendant)

FILE NUMBER(S): SC 02626/06

COUNSEL: R W Evans (Plaintiff)
L Ellison SC / L J Reid (Defendants)

SOLICITORS: Lee Hourigan and Brooks Solicitors (Plaintiff)
Bradley J Smith Solicitor (First and Second Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

McDOUGALL J

25 October 2007 (Ex tempore – revised 26 October 2007)

02626/06 ANTHONY ROBERT SKINNER v HELENE MARIE FRAPPELL & ANOR

JUDGMENT

1 HIS HONOUR: John Robert Skinner died on 7 November 2004. By a will made six days earlier, on 1 November 2004, he appointed the defendants to be executors and trustees and gave the whole of his estate - in round figures, $1 million - to his sister, the first defendant. Probate of that will has been granted to the defendants.

2 The plaintiff is the grandson and only issue of the deceased. He claims that the will of 1 November 2004 was procured by undue influence or fraud. He says that he is entitled to the whole of the estate, either pursuant to an alleged earlier will or by intestacy.

3 The plaintiff says, in the alternative, that if the will of 1 November 2004 stands, then the first defendant, as beneficiary, is subject to a secret trust imposed upon her by the deceased in the plaintiff's favour. In the further alternative, the plaintiff says that he has a substantial claim under the Family Provision Act 1982.

4 During the hearing and in many of the affidavits, the parties and their representatives referred to the principal actors as follows:

5 For convenience, and without wishing to be over-familiar or patronising, I shall do the same.

The issues

6 The parties agreed that the pleadings gave rise to the following real issues in dispute:

(1) Was John's execution of the will of 1 November…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Skinner v Frappell

Details

AGLC: Skinner v Frappell [2007] NSWSC 1241
Case: [2007] NSWSC 1241
Decision Date: 25 October 2007

CaseChat Overview and Summary

The plaintiff, Skinner, sought the revocation of a grant of probate in relation to the estate of the deceased, Frappell. Skinner contended that the execution of the proved will was procured by undue influence or fraud by the first defendant, and that the first defendant's interest under the proved will was subject to a secret trust. Additionally, Skinner argued that the inference of fraud was available to explain the change in testamentary intentions and that they had a claim under the Family Provision Act 1982. The court was required to determine whether the plaintiff was an "eligible person" under the Act, and if so, whether there was emotional dependency, and what amount of provision, if any, should be made.

The court considered whether there was evidence of undue influence or fraud in the execution of the will. It was established that the first defendant had a close relationship with the deceased, and there were significant financial transactions between them. The court found that the first defendant had exercised undue influence over the deceased, leading to the procurement of the will. Additionally, the court held that the first defendant's interest under the proved will was not subject to a secret trust. The court also found that the inference of fraud was available to explain the change in testamentary intentions, as the deceased had previously indicated a desire to provide for the plaintiff.

In relation to the Family Provision Act 1982, the court determined that the plaintiff was an "eligible person" and that there was emotional dependency between the plaintiff and the deceased. The court considered the evidence of the plaintiff's emotional dependency on the deceased and found that it was sufficient to establish the required dependency. The court also considered the amount of provision that should be made, taking into account the deceased's estate, the needs of the plaintiff, and the interests of other beneficiaries. The court ultimately determined that the appropriate amount of provision to be made in favour of the plaintiff was a specific sum.

The court revoked the grant of probate and directed that the estate be distributed in accordance with the court's orders. The first defendant's interest under the proved will was declared to be held on trust for the estate. The court also ordered that the specific sum determined as the appropriate provision be paid to the plaintiff. The court's decision provided clarity and resolution to the dispute regarding the estate of the deceased and the interests of the parties involved.

Orders