Tobin v Ezekiel [2012] NSWCA 285

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tobin v Ezekiel [2012] NSWCA 285 Hearing dates: 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.