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Supreme Court 25 October 2007

Skinner v Frappell

[2007] NSWSC 1241

Other
WILLS, PROBATE AND ADMINISTRATION “ELIGIBLE PERSON” EMOTIONAL DEPENDENCY

Citation: Skinner v Frappell [2007] NSWSC 1241
Court: Supreme Court of New South Wales, Equity Division
Date: 25 October 2007
Judge(s): McDougall J

Background

John Robert Skinner died on 7 November 2004, leaving an estate of approximately $1 million. Six days before his death, he executed a will appointing his sister and her husband as executors and leaving his entire estate to his sister. Probate of that will was granted to the defendants.

The plaintiff, Anthony, was the deceased's only grandchild and sole issue through his predeceased son Jason. Anthony brought proceedings by tutor (a litigation guardian appointed because he was not of full legal capacity to sue independently at the time). He challenged the validity of the 1 November 2004 will and sought the estate on multiple grounds.

The deceased had, over many years and through numerous conversations, consistently expressed an intention to leave his estate or the bulk of it to Anthony. The tension between those longstanding stated intentions and the terms of the final will lay at the heart of the dispute.

  • Whether the execution of the 1 November 2004 will was procured by fraud on the part of the first defendant
  • Whether the first defendant's interest under that will was subject to a secret trust in Anthony's favour, arising from communications between the deceased and the first defendant
  • Whether Anthony was an "eligible person" under the Family Provision Act 1982 and, if so, whether provision should be made for him and in what amount

Decision

Fraud and undue influence: The court considered whether the deceased's dramatic change in testamentary intentions, from consistently favouring Anthony to leaving everything to his sister, could be explained by fraud. Despite the suspicious timing and the deceased's prior statements, the court ultimately rejected the fraud claim. Anthony's case on this ground failed.

Secret trust: The court also rejected the secret trust argument. A secret trust arises where a testator communicates wishes to a beneficiary, who then undertakes to carry them out, creating a binding obligation not apparent from the face of the will. The court was not satisfied that the necessary elements of such a trust were established on the evidence.

Family Provision Act claim: The court considered Anthony's claim under the Family Provision Act 1982, which required it to determine whether Anthony was an "eligible person" within the meaning of that Act. The catchwords indicate the court examined the concept of emotional dependency in this context. Despite engaging with the merits of the family provision claim, including a detailed analysis of Anthony's financial circumstances, education goals, and likely expenses totalling approximately $200,000 plus a $50,000 capital reserve, the court ultimately found that this claim also failed.

The court observed, by way of obiter (that is, as a finding made without it being strictly necessary to the outcome), that had the family provision claim succeeded, it would have awarded Anthony a legacy of $250,000 from the estate. The estate was approximately $1 million, and the defendants had not advanced a case of need to reduce any such award.

Orders Made

  • Judgment entered in favour of the defendants
  • The plaintiff is ordered to pay the defendants' costs
  • Exhibits to be retained with the court papers for 28 days, then held or disposed of in accordance with the Rules

Key Takeaways

  • A marked change in a testator's expressed intentions, even one inconsistent with years of prior statements, does not of itself establish fraud or undue influence sufficient to revoke a grant of probate.
  • For a secret trust to be imposed on a beneficiary, clear evidence is required that the testator communicated specific wishes to the beneficiary and that the beneficiary undertook to carry them out; a general awareness of the testator's intentions is insufficient.
  • Under the Family Provision Act 1982, the concept of "eligible person" may engage questions of emotional dependency, not merely financial or familial dependency in a formal legal sense.
  • Where a family provision claim fails on the threshold question of eligibility or justification, any assessment of the quantum of provision the court would have ordered is strictly obiter, though the Supreme Court here indicated it would have awarded $250,000 had the claim succeeded.
  • Costs followed the event, with the unsuccessful plaintiff ordered to pay the defendants' costs of the proceedings.

Legislation and Cases Referenced

Legislation:
- Family Provision Act 1982 (NSW)

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