Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81

Supreme Court New South Wales

Medium Neutral Citation: Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81 Hearing dates: 21-25 September 2009, 19 & 20 November 2009, 9 December 2009 Decision date: 01 March 2011 Jurisdiction: Equity Division - Probate List Before: Brereton J Decision: Plaintiffs' claim for revocation of grant of probate by reason of lack of testamentary capacity fails. Plaintiffs' claim for revocation of the grant of probate by reason of undue influence fails. Plaintiffs' claim for revocation of the grant of probate by reason of the testatrix not knowing and approving the content of the will fails. That provision for the Plaintiffs out of the testatrix's estate pursuant to the (NSW) Family Provision Act, 1982 fails. Catchwords: SUCCESSION - Wills and Estates - testatrix devises real property to defendant sons - plaintiff daughters contest capacity of testatrix at time of preparing and making will - legal onus on defendants to establish testatrix freely and capably executed will - evidential onus on plaintiffs to rebut presumption of capacity - at time of execution will was rational on its face - medical evidence and evidence of persons who observed testatrix at time of preparation and execution do not raise doubts as to capacity - held: testatrix was of sound mind, memory and understanding at time of executing will. SUCCESSION - Wills and Estates - whether will procured by undue influence - burden of establishing undue influence falls on party impugning the will - necessity to establish will of the testatrix was overborne - circumstantial evidence - undue influence must be more probably than not the explanation for the will - burden of proof to the Briginshaw standard - undue influence said to be inferred from: change in former testamentary position of equality amongst four children of testatrix; involvement of defendant sons in execution of the will; testatrix's vulnerability to defendant son; failure and irregularities of legal protections surrounding preparation and execution of the will by a solicitor; and dishonesty of defendants in giving evidence to the court - held: most probable explanation of circumstantial evidence is not coercion of testatrix's will. SUCCESSION - Wills and Estates - plaintiffs contend that notwithstanding failure to establish defence of undue influence there were sufficient circumstances of suspicion to cast onus on defendants to establish testatrix's knowledge and approval of will - proponent of will generally bears onus to establish testator knew and approved contents - knowledge and approval usually satisfied by proving testamentary capacity and due execution of will - suspicion of undue influence not a relevant suspicion in removing presumption of knowledge and approval - held: testatrix knew and approved the contents of the will. SUCCESSION - Family Provision Claim - plaintiffs eligible persons as daughters of testatrix - whether testatrix made adequate provision for proper maintenance of plaintiffs - no provision made for plaintiffs under will - equality is not starting point for purposes of Family Provision legislation - essential question is whether testatrix failed in a moral duty to make proper and adequate provision for eligible persons for whom the community would expect provision to be made - defendant was dependent on testatrix and his father for accommodation - defendants in relatively worse financial positions than plaintiffs - held: in circumstances, neither plaintiff left with inadequate provision for their proper maintenance. Legislation Cited: (CTH) Family Law Act, s 79 (NSW) Family Provision Act 1982 s 9(2), s 24, s 27 (NSW) Succession Act 2006 (NSW) Succession Amendment (Family Provision) Act 2008 (NSW) Wills, Probate and Administration Act 1898, s 18A Cases Cited: Atter v Atkinson (1869) L.R. 1 P. &D. 665 Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) L.R. 5 Q.B. 549 Bool v Bool [1941] St R Qd 26 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Boyse v Rossborough (1854) 43 ER 321 Buckley v Maddocks (1891) 12 LR (NSW) (Eq) 277 Bull v Fulton (1942) 66 CLR 295 Callaghan v Ryan (1880) LR 1 (NSW) 351 Churton v Christian (1988) 8 NSWLR 241 Craig v Lamoureux [1920] AC 349 Easter v Griffith, NSWCA, unreported, 7 June 1995 Gregson v Taylor [1917] P 256 Guardhouse v Blackburn (1866) LR 1 P&D 109 Hall v Hall (1868) LR 1 P&D 481 Kantor v Vosahlo [2004] VSCA 235 Nicholson v Knaggs [2009] VSC 64 Nock v Austin (1918) 25 CLR 519 Parfitt v Lawless (1872) LR 2 P&D 462 Public Trustee v Permanent Trustee Company Ltd; Estate of Rintoul [1999] NSWSC 722 Re Crooks (Estate); Ackerman v Brown NSWSC, Young J, 14 December 1994, unreported Re Fenwick [1972] VR 646 Re Fulop (deceased) (1987) 8 NSWLR 679 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Ridge v Rowden, NSWSC, Santow J, 10 April 1996, unreported, BC9601342 Singer v Berghouse (No 2) (1994) 181 CLR 201 Stewart v McDougall (NSWSC, Young J, 19 November 1987) The Public Trustee v McKeon (1917) 17 SR (NSW) 157 Timbury v Coffee (1941) 66 CLR 277 Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor [2007] NSWCA 136 Tyrrell v Painton (No.1) [1894] P 151 Vernon v Watson; Estate Clarice Quigley [2002] NSWSC 600 Vigolo v Bostin [2005] HCA 11, (2005) 221 CLR 191 Walker v Walker, Unreported, NSWSC 17 May 1996 Watson v Kerridge (1888) 9 LR (NSW) Eq 35 Williams, formerly Cook v Goude and Bennett (1828) 1 Hag Ecc 577 Wingrove v Wingrove (1886) LR 11 PD 81 Winter v Crichton (1991) 23 NSWLR 116 Woodley-Page v Simmons (1987) 217 ALR 25 Worth v Clasohm (1952) 86 CLR 439 Category: Principal judgment Parties: Evelyn Tobin (first plaintiff) Clara Ezekiel (second plaintiff) Morris Ezekiel (first defendant) Albert Ezekiel (second defendant) Representation: Counsel: Mr J Gormly SC (plaintiffs) Mr T Hale SC w Mr J Tobin (defendants) Solicitors: T D Kelly & Co (plaintiffs) McLachlan Chilton (defendants) File Number(s): 2006/275504