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:

the deceased – John;
the plaintiff – Anthony;
the first defendant – Helene;
the second defendant (Helene's husband) - Leslie,
or Les.

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 2004 procured by fraud on Helene's part?

(2) Alternatively, is Helene's interest under that will subject to a secret trust because of communications by John to her, whereby John communicated, and she undertook to carry out, his wishes, which were not as they appeared in the will?

(3) Alternatively, does Anthony have a claim under the Family Provision Act ? Is he an eligible person? If so, is his application justified? If it is, in what amount (if any) should provision be made?

The relevant facts

7 The parties (in particular, Anthony) relied on numerous affidavits and each responded to the affidavit evidence of the other, often in excruciating - not to say petty - detail. As the case was run at the hearing (and in this respect I wish to acknowledge the sensible and efficient approach taken by counsel) most of those petty disputes fell away. It is, therefore, possible to state the background facts simply and to deal thereafter with the factual matters that remain in dispute.

Chronological survey

8 John was born on 29 October 1937. From about 1965 he lived at Bundeena. He was married on 28 June 1966 to Diane Porter. On 11 January 1967 there was born to that marriage a son, Jason. John and his then wife separated. Thereafter, Jason continued to live with his mother. The marriage was dissolved on 12 March 1976.

9 On 10 July 1976 John married Heather Newman. That marriage was dissolved on 6 March 1979.

10 Jason married Christine Fricka on 18 November 1988. Anthony was born on 21 May 1989. Jason died on 3 February 1990.

11 From about 1990, John had a number of discussions with various people as to his testamentary intentions. Consistently throughout those discussions, John indicated that Anthony was to be “a” or “the” beneficiary of his estate.

12 Anthony's mother remarried in 1993.

13 In July 1999 John underwent major heart surgery.

14 On 6 September 2004 John went to hospital to undergo surgery for bowel cancer. He was released, to live at home, on 18 September 2004. He was readmitted to hospital on 20 October 2004 and released to live at home on 25 October 2004.

15 During this second admission to hospital, Helene and Leslie came from Jindabyne (where they lived) to stay with John at his Bundeena residence. Helene and Leslie stayed there and cared for John until his death on 7 November 2004.

16 There was evidence, both from Anthony and his grandmother, as to the relationship between John and Anthony. I accept that the relationship was a loving one, such as one might expect (or hope) to see between a grandfather and his only grandchild.

John’s statements as to his testamentary intentions

17 As I have said, from at least 1990 John discussed his testamentary intentions with a number of people. On the unchallenged evidence of those with whom he discussed this topic, John said that he wished to give his estate, or the bulk of it, to Anthony. There is one exception, relating to a conversation between John and Helene in about 1990, to which I shall return.

18 John returned to this topic more frequently during the last two years of his life. He told a number of people that he wished to leave the residue of his estate to Anthony, after providing legacies for a number of Anthony's friends and children of John's friends.

19 As I have said, John lived at Bundeena. At the time, it was a small and tight knit community. John was a well known and respected figure in that community. He had many friends there, and when Anthony stayed with John, he made friends with people his own age.

20 The clearest evidence of John's testamentary intentions comes from a friend and neighbour, Mr Richard Carter. Mr Carter said (and this aspect of his evidence was unchallenged) that in February 2004, before the first of the three "Carter" wills to which I refer below was made, John said that he wished to give legacies of $30,000 each to some ten younger people, and to leave the rest of his estate to Anthony.

21 Some of the legatees were identified by name, and others by description. There was no evidence of any discussion thereafter, either with Mr Carter or with someone else, in which John indicated other or different beneficiaries.

22 John was troubled at the thought that Anthony might squander any inheritance that he received. Thus John was looking for ways to tie up his estate until Anthony reached the age of 25 or 30. John discussed this with a number of people, including Mr Carter. Unfortunately, John did not discuss this, or his affairs generally, with a lawyer.

Evidence as to wills

23 Helene gave unchallenged evidence of a discussion with John in about 1990, after Jason had died. She said that John told her that he had made her his executor, and had left his property at Bundeena to Helene's daughters and Anthony in equal shares.

24 There is no evidence of any other will in existence between 1990 and 2004.

25 Mr Carter and his wife, Mrs Elaine Carter, gave evidence that John made, and they witnessed, three wills during 2004. Mr Ellison of senior counsel, who appeared with Mr L Reid of counsel for the defendants, did not concede that those three "Carter" wills (if I may so call them) had been made. I find that they were.

26 The first of those wills was made in February 2004, after the discussion between John and Mr Carter to which I have referred. John asked Mr and Mrs Carter if they would witness his will. They agreed to do so. He came to their house with a form of will and signed it in their presence. They witnessed his signature and signed accordingly. Neither of them read the document or had any idea of what its provisions were. Mrs Carter said that she observed that the document was a pre-printed form with the word or words "will" or "will and testament" printed on it, and that it had as well some handwriting. I accept that evidence. In context (including John's request to them to witness his will) the evidence satisfies me that the document in question was a will and was executed as such.

27 The second will was made in September 2004. The circumstances were virtually the same as those in which the first will was made: including that Mrs Carter identified the document as being in the same form as the previous one. Again, in context, the evidence satisfies me that the document was a will, and was executed as such.

28 The third will was made on 31 October or 1 November 2004. Neither Mr nor Mrs Carter is certain as to the date. I think that the better view was that it was on the earlier day, Sunday 31 October 2004. This time John asked Mr and Mrs Carter to come to his house to witness his will. They assembled at the dining table in John's house and the signing ceremony took place. Mrs Carter again identified the document as a will form, similar to those signed on the two previous occasions. Neither she nor Mr Carter knew what the will provided. Again, I am satisfied that the document was a will, and was executed as such.

29 There is some doubt as to how John came to be in possession of the will forms. The local newsagent, Mr Brian Jennings, stocked forms of will. However, he could not recall that John had bought them from him. Looking at the whole of Mr Jennings’ evidence, and bearing in mind what I have said as to the Bundeena community and John's place in it, I think that Mr Jennings' evidence suggests that John did not buy the will forms from him.

30 Not much turns on this, except that it renders difficult the identification of the printed terms of the draft will forms. The one stocked by Mr Jennings included a revocation clause. It may be, in particular, on Mrs Carter's evidence, that the form used on the three occasions to which I have referred, was different. If so, there is no direct evidence that it included a revocation clause.

31 Nonetheless, I think, the reality is that a pre-printed will form prepared for testators to complete, without necessarily taking legal advice, would be likely to include a revocation clause.

32 Mr and Mrs Carter said that Helene and Leslie were present when the third will was made. Helene denies this, although it is clear that she (and, for that matter, Leslie) were in John's house at the relevant time. Leslie's evidence, I think, accommodated the possibility (which Mr Carter's evidence supports) that Leslie may have been physically in the room (a combined living and dining room of quite some size), but unaware of what was going on.

33 Despite Helene's denial, I think it likely that she and Leslie were in the room for at least part of the time when the third will was signed. But I do not find that Helene or Leslie were aware that John was then making a will.

34 Helene, in particular, struck me as a private person, and one who would not and did not seek to intrude herself into the affairs of others (even those of her brother). Nor do I think that Leslie is a man who would pry into the affairs of others. In circumstances where contact between John and Mr and Mrs Carter occurred on a daily basis, I see no reason for Helene or Leslie to pay any great attention to whatever might have been passing between those three people on the day in question; nor, having regard to my observations of them, do I think it likely that they would have done so.

35 In this context, I note that neither Mr nor Mrs Carter said that Helene or Leslie was present at the table when the will was signed. Mr Carter said that they could have been from 8 to 15 feet distant.

36 John's last will was made, according to its date, on 1 November 2004. Mr Evans of counsel, who appeared for Anthony, made a valiant attempt to persuade me that the will was made on the following day, Melbourne Cup Day. I remain unpersuaded. The only evidence in support of the submission did not identify specifically that a will was signed. The submission is inconsistent with the direct testimony of Helene and Leslie and of Mr Mario Kordovolos, a witness to the will. I accept their evidence on this point.

37 Mr Kordovolos’ wife, Lynne, was John's (and also therefore Helene's) cousin. Mr Kordovolos and his wife had had a long and sustained social relationship with John, and John had worked for Mr Kordovolos for a number of years. Mr Kordovolos visited John virtually daily during John’s last weeks of life (after his return from hospital on the second occasion). On one such visit, two or three weeks before John died, they discussed John's affairs. According to Mr Kordovolos (whose evidence I accept) John said that his affairs were not then in order. Mr Kordovolos suggested that John should make a will. John did not demur.

38 Some little time later, Mr Kordovolos bought a will form from the Bundeena newsagency and gave it to John. That day or shortly after, John told Mr Kordovolos that he wanted to make a "nice and simple" will in favour of Helene.

39 On 1 November 2004, John asked Leslie to write out John's will at John's dictation. Leslie did so. He says, and I accept, that the dispositive words of the will were almost, if not completely, John's words verbatim. Leslie utilised either the very will form that Mr Kordovolos had bought and given to John, or another identical form.

40 Mr and Mrs Kordovolos were in John's house when Leslie wrote out the words of his will. Mr Kordovolos was present with John and Leslie whilst Leslie was doing this. Mr Kordovolos and Leslie agreed that after Leslie had completed the will form at John's dictation, he read it back to John.

41 Mrs Kordovolos then entered the room. John signed the will in her presence and that of her husband; they signed as witnesses.

42 Leslie did not tell Helene what had happened; nor did Mr Kordovolos. Helene's evidence is that she did not learn of the will or its terms until John told her the next day. That evidence is contained in paragraph 37 of her affidavit sworn 15 December 2006:

On Tuesday, 2 November, I took some pear juice in to John. I said – “ Are you getting up today?” He said – “I’ve got my Will here. I want you to put it away so you know where it is for later.” I said – “I don’t need that now, do I?” He said – “I’ve left everything to you. I want you to have Bundeena.” I said – “Oh John, what about your grandson?” John said – “I don’t want him to have anything. Why should I leave him anything? I don’t have any kind of relationship with him. I never see him and he never rings me. I’m the one who does all the phoning and sending him cards on his birthday. But what do I get from him? He isn’t interested in me or cares about me, only what I can do for him, it seems.” I said – “I think you’re being a little unfair.” He said – “Well, did he think to ring me on my birthday? And besides, they don’t even know I am ill. I haven’t heard from him for ages. If he cared about me, he’d be here. You’re the only one that’s ever really cared for me.” I burst into tears and we hugged each other and I thanked him. He said – “You do what you think is right with it. I know you will.”

43 Helene was challenged on this (and other) aspects of her evidence. In my view, Helene was a witness who sought to the best of her ability to tell the truth. With the exception to which I have referred, I accept the substance of her evidence, including para 37.

44 The only documentary will of John's that was put into evidence is the will of 1 November 2004. Helene gave unchallenged evidence that on the afternoon of 25 October 2004, when John returned home from hospital, he threw out a large quantity of photographs, papers and other things in his room. This activity continued from time to time over the following weeks. John said to her on one occasion words to the effect of, "I don't want you to have to clean out all my personal stuff and I certainly don't need it any longer". I accept Helene's evidence that those words were said to her, and her evidence of John’s cleaning up of his papers.

45 No will other than that of 1 November 2004 was found at John's house after his death. There is no doubt that Helene and Leslie knew where John kept his personal papers. Each of them denied looking through those papers before John's death. I accept that evidence. It was not put to either Helene or Leslie that they had destroyed, concealed or withheld any earlier will made by John.

46 I conclude that if John had retained the three "Carter" wills after they were made (or, for that matter, the will made in or before 1990), he disposed of them, either in the initial clean-up or later (obviously, as to the third “Carter” will, later). He must have done so because he no longer regarded them as having dispositive effect.

Fraud: the alleged inducement

47 Mr and Mrs Carter each gave evidence that on 3 November 2004, Leslie summoned them to John's house. They met John in his bedroom. They each say that John said to them words to the following effect:

"Helene told me that her accountant told her that the way to make a will is to leave it all to one person who will carry out your wishes. Don’t you two make the same mistake with your wills that I nearly made."

48 Mr Carter's evidence is that the words to which I have referred were preceded by words to the effect, "I had to change the will".

49 In my view, each of Mr and Mrs Carter was a witness who sought to tell the truth to the best of his or her ability. I do have a concern with one aspect of their evidence. It seems that, when they were asked to swear affidavits, they discussed the relevant events between themselves. I infer that their purpose was to ensure that each had a recollection of the relevant events. Thus, I do not regard them as completely independent of each other; but, in substance, I accept their evidence, even though in some ways it might be regarded as a composite recollection.

50 Thus, I accept that John did say to Mr and Mrs Carter words to the effect of those that I have set out.

51 Helene denied that she said those words, or words to their effect, at any time, to John. As I have said, I accept her as a witness of truth. She was challenged in detail about the alleged conversation, and remained firm in her denial. She did not strike me as someone who would seek to gain a personal advantage by concocting and making an egregiously false representation to her dying brother. I accept her denial.

52 Mr Evans put that the alleged conversation was likely to have occurred, because something must have happened to change John's intention to leave the bulk of his estate to Anthony. I accept that something must have happened. I do not accept that Helene used words to John to the effect of those alleged.

53 It is clear that John's testamentary intentions were not settled. He had made three wills in eight months, the third of them a day before the (last) will of 1 November 2004. It is clear from John's conversation with Mr Kordovolos, to which I have referred, that John, after his return from hospital, did not regard the question of his will as settled. That is consistent with his actions in throwing out papers, including, I think, the first two “Carter” wills, on or after 25 October; and in throwing out further papers, including I think the third “Carter” will, thereafter.

54 I think that, as Helene and Leslie cared for John in his last weeks of life, he became more and more attached to them. Mr Evans submitted that the relationship between John and Helene had not been close. The evidence on which he relied was not convincing and was inconsistent with Helene’s evidence to the contrary. This aspect of Helene’s evidence was not challenged, and I accept it.

55 Further, I think, John became dissatisfied with the state of his relationship with Anthony. That is demonstrated by Helene’s evidence in paragraph 37 of her affidavit, which I have set out above. John may or may not have been realistic in his appraisal of the relationship, as Helene sought to point out. That is not to the point. There was no challenge to John's testamentary capacity (nor could there be, on either party’s case).

56 It was not suggested that Helene had inspired or fed John's sense of grievance. That sense of grievance may have lacked objective justification, but - especially coupled with Helene and Leslie's devoted attention to John in the last weeks of his life - it is more than capable of explaining the change of heart.

57 It is necessary to bear in mind that John was near death. He was suffering from bowel cancer, with advanced secondary metastases in the lungs and liver. No doubt he was in substantial pain. It is not to be wondered that, at this stage of his life, John might turn towards those who were caring for him and against the one who, rightly or wrongly, John saw as lacking interest.

58 I do not mean to be critical of Anthony in saying this. It is clear that John sought to withhold details of his condition from his family (including, as late as September 2004, Helene). I suspect that he was in denial, and that, in addition, he did not wish to disclose his poor state of health to others. But, Anthony not knowing of his grandfather's condition, there could hardly be criticism of him for not seeking to make enquiries.

59 In my view, the change in John's testamentary intentions can be explained by reference to innocent causes. There is no inevitable inference of fraud.

60 As I have indicated, the case was originally pleaded as one of undue influence. Following the decision of the Court of Appeal in Trustees for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136, the statement of claim was further amended to allege, in the alternative, fraud. As Anthony's case was run the undue influence case stood or fell with the case of fraud. There was no separate case of undue influence put.

61 Nothing that I have said explains why John said to Mr and Mrs Carter the words that I have found were said, but the case is one of tested, and in my view credible, evidence against the untested evidence of a deceased person - more accurately, the untested comments made by a deceased person.

62 One may speculate as to why John said what he did. Perhaps he was trying to conceal his change of heart from Mr and Mrs Carter. Perhaps he had misunderstood, or conflated with other matters, something that had been said to him. Perhaps he was confused by reason of his condition, his pain and the medication he was taking (there was no specific evidence of what this medication was). I do not know. But I do not regard those untested comments as compelling to the point where there can be no explanation other than fraud.

63 Accepting, as I do, this aspect of Helene's evidence, and finding, as I do, that the change in John's intentions has a credible innocent explanation, I do not find fraud.

Secret trust

64 The evidentiary foundation for this aspect of Anthony's case was the statement said to have been made by Helene to John. Since I have found that Helene did not make that statement, the case based on secret trust must fail.

65 There is, however, another reason why it must fail. If someone is to be held to be a trustee under a secret trust, it must be proved, among other things, that he or she took a gift under a will on terms that he or she would not hold that gift beneficially, but would hold it on trust for those nominated by the testator to the putative secret trustee.

66 In this case, there is simply no evidence that John communicated any such proposition to Helene or that she, expressly or by acquiescence, accepted any such proposition.

67 Mr Evans submitted that Helene’s alleged statement to John indicated that John must have communicated to Helene that she was not to take his estate beneficially, but to hold it on trust for others. Since I have found that Helene did not make that statement to John, this submission fails.

68 Further, Helene denied that John communicated to her any instructions or intention, wish or desire that she should hold her interest under his will on trust for others. I accept that evidence. Helene’s evidence goes no further than what is said in paragraph 37 of her affidavit. Mr Evans did not submit that there was in this paragraph evidence of any communication or acceptance of a condition on which Helene was to hold her interest under the will. He was right not to make such a submission.

Family provision act claim

Eligible Person

69 Anthony can only be an ” eligible person" if he satisfies paragraph (d) of the definition of that term in s6 of the Act:

(d) a person:

(i) who was, at any particular time, wholly or partly dependent upon the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member.

70 The critical concept is that of dependency. Mr Evans submitted that Anthony, after the death of his father, was dependent on John for emotional support. That submission fails at the level of principle, and as a matter of fact.

71 As a matter of principle, I accept that the concept of dependency is not limited to financial dependency. It means that someone depends on someone else. See Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 (Hope AJA, with whom Clarke and Sheller JJA agreed). But dependency does not extend to mere emotional dependence. See Benney v Jones (1990) 23 NSWLR 559 at 561 (Mahoney JA); 565-566 (Priestley JA, with whom Meagher JA agreed).

72 As a matter of fact, the evidence does not support the submission of emotional dependency. Mr Evans' submission was, in substance, that after the death of Jason, John assumed the obligation of providing emotional support to Anthony in his passage through childhood. Anthony's own evidence shows that this is not correct. Jason died in 1990. John had no extensive contact with Anthony thereafter except at Christmas and on birthdays, until 1999.

73 In that year Anthony spent some time - on his evidence, about a week - with John during the Christmas holidays. This continued for four years until 2003, by which time Anthony had become heavily involved in competition soccer and competition tennis. I do not doubt that the time Anthony spent with his grandfather was rewarding for both of them, but it does not follow that Anthony was then, or at any time, depending on John for emotional support.

Other issues

74 In case I am wrong in what I have said as to dependency, I will deal briefly with the remaining issues under the Family Provision Act claim. The first issue is that posed by s 9 (1) of the Act: whether, supposing Anthony were an eligible person, there are factors that warrant the making of the application.

75 In my view, if this issue arose, it should be resolved in Anthony's favour. He was John's sole descendant. Anthony's father, John’s son, had died when Anthony was a baby. Anthony had no one else to whom he could look for his education and advancement in life.

76 John must have realised, and in my view did realise, this. In those circumstances, Anthony was a natural object of John's testamentary recognition (to adopt the oft cited words of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681.) Indeed, on the evidence, John, during his lifetime, recognised this.

77 The next issue is as to the amount of any provision that should be made. Anthony has no educational or trade qualifications. This, he said, is because of his attempts to forge a career as a professional sportsman - something that is unlikely now to happen.

78 Anthony said that he would like to pursue a career teaching sports and physical education. He has identified an appropriate four-year course at the University of Newcastle. His University Admission Index is insufficient at present to get him into that course, but he hopes to undertake it after he turns 21, as a mature age student. In the meantime, he hopes to secure an apprenticeship as a carpenter.

79 The cost of the course over four years is about $56,000. If Anthony were able to secure a Commonwealth Supported Place, the cost would drop to about $24,000. There are, however, few such places; and there is no certainty that Anthony would obtain one.

80 In addition, Anthony would require living expenses, including rent. He estimated rent over four years at a total of $65,000 and other living expenses (at the rate of $250 a week) at $45,500. None of this evidence was challenged.

81 I should note that Anthony's case was put on the basis that he might buy a unit in Newcastle at a cost of between $230,000 and $270,000. I do not regard that as appropriate. I think that providing for rent would be adequate in all the circumstances.

82 The amounts to which I have referred total some $166,500. I do not think that the estimation for living expenses is generous. In this context, I note that Anthony has given evidence of orthodontic and other expenses. In my view a total figure of about $80,000 for living expenses over four years would be more appropriate, but by no means lavish. That would bring the total to $200,000.

83 In addition, I think that there should be some capital reserve: either for the contingencies of life or to enable Anthony to advance himself once he has secured his tertiary qualifications. I would fix a figure of $50,000 for this.

84 As I have said, the estate in round figures is around $1 million. The Family Provision Act case was defended on the basis that Helene and Leslie had no case of need to justify reducing what might otherwise be an appropriate award in Anthony's favour. Had it been necessary to do so, I would have held that Anthony should receive out of John's estate a legacy of $250,000.

Conclusion and orders

85 Anthony's case fails. I direct entry of judgement in favour of the defendants, with costs. I order that the exhibits be retained with the papers for 28 days and that, thereafter, they be held or disposed of in accordance with the Rules.

FOR JUDGMENT ON COSTS SEE SEPARATE JUDGMENT

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