Tobin v Ezekiel

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.