Skinner v Frappell [2008] NSWCA 296

Skinner v Frappell [2008] NSWCA 296

The appeal failed because the circumstantial evidence did not create a compelling or irresistible inference of fraud or undue influence, the trial judge's credibility findings were not shown to be glaringly improbable or contrary to compelling inferences, there was no evidence that the deceased communicated and the first respondent accepted any trust obligation sufficient to establish a secret trust, and the appellant did not establish dependency required for eligibility under the Family Provision Act 1982.

Jurisdiction
Australia
Judgment Date
12 November 2008
Procedural Posture
Appeal / Court of Appeal From a Decision of Mc Dougall J in the Supreme Court Equity Division Dismissing Applications to Revoke Probate, for a Declaration of a Secret Trust, and Under the Family Provision Act 1982
Outcome
Appeal dismissed with costs.
Legal Topics
['revocation of Probate' 'fraud' 'undue Influence' 'secret Trust' 'grandchild Eligibility' 'dependency' 'appellate Review of Findings of Fact' 'compelling Inferences']
['succession' 'probate' 'equity' 'family Provision' 'appellate Procedure'] ['revocation of Probate' 'fraud' 'undue Influence' 'secret Trust' 'grandchild Eligibility' 'dependency' 'appellate Review of Findings of Fact' 'compelling Inferences']

Case Brief

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Procedural Posture

Appeal / Court of Appeal From a Decision of Mc Dougall J in the Supreme Court Equity Division Dismissing Applications to Revoke Probate, for a Declaration of a Secret Trust, and Under the Family Provision Act 1982

Legal Issues

  1. 1 ['Whether the trial judge erred in declining to infer fraud or undue influence warranting revocation of probate from undisputed or decided facts.' "Whether the evidence established a secret trust over the deceased's estate in favour of the appellant or others." 'Whether the appellant, as a grandchild of the deceased, was wholly or partly dependent upon the deceased for the purposes of the Family Provision Act 1982.' "Whether the trial judge's findings based on credibility should be disturbed on appeal as being glaringly improbable or contrary to compelling inferences."]

Ratio Decidendi

The appeal failed because the circumstantial evidence did not create a compelling or irresistible inference of fraud or undue influence, the trial judge's credibility findings were not shown to be glaringly improbable or contrary to compelling inferences, there was no evidence that the deceased communicated and the first respondent accepted any trust obligation sufficient to establish a secret trust, and the appellant did not establish dependency required for eligibility under the Family Provision Act 1982.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.' "The appellant is to pay the respondents' costs of the appeal."]