This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Appeal
New South Wales
Case Title:
Tobin v Ezekiel
Medium Neutral Citation:
[2012] NSWCA 285
Hearing Date(s):
29 and 30 March 2012
Decision Date:
13 September 2012
Before:
Basten JA at [1]; Campbell JA at [2]; Meagher JA at [20].
Decision:
(1) Appeal allowed in part. (2) Set aside the order made by Brereton J on 1 March 2011 dismissing the proceedings in so far as they seek relief under the Family Provision Act. (3) The property at Beach Road, Bondi Beach, subject to existing registered mortgages, be designated as notional estate of the deceased, Lily Ezekiel. (4) Provision be made for the second appellant out of that notional estate by payment of the sum of $225,000 to the second appellant with the intent that the balance of that estate is held by the respondents as tenants in common in equal shares. (5) Pursuant to s 13 of the Family Provision Act, the beneficial entitlement of the first respondent to a half share in that notional estate bear the burden of the order for payment in order 4 and the order for interest in order 6. (6) The sum of money in order 4 bear interest at the rate of 5 per cent from the date of this judgment. (7) Set aside the costs order made by Brereton J on 23 May 2011. (8) The appellants pay the respondents' costs of the proceedings before Brereton J fixed at $35,000. (9) The appellants pay the respondents' costs of the appeal fixed at $55,000. (10) Appeal otherwise dismissed.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
WILLS AND ESTATES - application to revoke grant of probate - operation of "suspicious circumstances" rule in context of an allegation of undue influence - whether false evidence given by beneficiaries as to events surrounding making of will gave rise to adverse inferences concerning their involvement - whether suspicious circumstances as to knowledge and approval established - whether, having affirmatively established knowledge and approval, proponents of will also required to disprove any remaining suspicion of undue influence.
WILLS AND ESTATES - family provision claim - four adult children - whether adequate provision made for proper maintenance of two daughters - sons, who are executors and only beneficiaries, gave false and incomplete evidence as to their financial resources - whether adverse inferences should have been drawn as to extent of earning capacity or financial resources - re-exercise of discretion under s 7 of the Family Provision Act 1982 - circumstances justify provision from notional…
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.
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AGLC
Tobin v Ezekiel [2012] NSWCA 285
Case
[2012] NSWCA 285
Decision Date
CaseChat Overview and Summary
In *Tobin v Ezekiel*, the New South Wales Court of Appeal considered an appeal concerning a deceased's will and a subsequent family provision claim. The primary dispute involved an application to revoke the grant of probate, with allegations of undue influence and suspicious circumstances surrounding the will's execution. Additionally, the appeal addressed a family provision claim brought by two adult daughters against their brothers, who were the executors and sole beneficiaries of the estate. The daughters alleged that inadequate provision had been made for their proper maintenance and that the brothers, as executors, had provided false and incomplete evidence regarding their own financial resources.
The Court of Appeal was required to determine several key legal issues. Firstly, it had to consider the operation of the "suspicious circumstances" rule in the context of an undue influence claim, and whether false evidence given by beneficiaries about the will's execution warranted adverse inferences regarding their involvement. Secondly, the Court needed to assess whether suspicious circumstances concerning the deceased's knowledge and approval of the will were established, and if so, whether the proponents of the will were required to disprove any remaining suspicion of undue influence even after knowledge and approval had been affirmatively established. Thirdly, in relation to the family provision claim, the Court had to decide whether adverse inferences should have been drawn from the beneficiaries' false and incomplete evidence concerning their earning capacity and financial resources, and whether to re-exercise the discretion under s 7 of the *Family Provision Act 1982* (NSW) to make provision from the notional estate.
The Court of Appeal reasoned that the beneficiaries' provision of false and incomplete evidence in both the probate and family provision proceedings was significant. It held that where interested beneficiaries give such evidence, adverse inferences may be drawn concerning their financial resources and earning capacity. The Court found that the circumstances justified making provision from the notional estate for one of the daughters. The appeal was allowed in part, with the order dismissing the family provision proceedings being set aside. The property at Beach Road, Bondi Beach, was designated as notional estate, and provision was made for the second appellant from this notional estate. The Court also made orders regarding the incidence of the provision and interest, and addressed the costs of the proceedings.
Orders
Orders of the court
(1) Appeal allowed in part.
(2) Set aside the order made by Brereton J on 1 March 2011 dismissing the proceedings in so far as they seek relief under the Family Provision Act.
(3) The property at Beach Road, Bondi Beach, subject to existing registered mortgages, be designated as notional estate of the deceased, Lily Ezekiel.
(4) Provision be made for the second appellant out of that notional estate by payment of the sum of $225,000 to the second appellant with the intent that the balance of that estate is held by the respondents as tenants in common in equal shares.
(5) Pursuant to s 13 of the Family Provision Act, the beneficial entitlement of the first respondent to a half share in that notional estate bear the burden of the order for payment in order 4 and the order for interest in order 6.
(6) The sum of money in order 4 bear interest at the rate of 5 per cent from the date of this judgment.
(7) Set aside the costs order made by Brereton J on 23 May 2011.
(8) The appellants pay the respondents' costs of the proceedings before Brereton J fixed at $35,000.
(9) The appellants pay the respondents' costs of the appeal fixed at $55,000.
(10) Appeal otherwise dismissed.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]