Skinner v Frappell [2007] NSWSC 1241

New South Wales Supreme Court

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

Benney v Jones (1990) 23 NSWLR 559 at 561 CASES CITED : 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

Anthony Robert Skinner by his tutor Dianne Elizabeth Skinner (Plaintiff) PARTIES : 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: