Aoukar v Nemer - [2019] SASC 218

Supreme Court of South Australia

(Civil)

AOUKAR & ANOR v NEMER & ORS

[2019] SASC 218

Judgment of The Honourable Justice Stanley

24 December 2019

SUCCESSION - MAKING OF A WILL - EXECUTION

This is an application pursuant to Rule 235 of the Supreme Court Civil Rules 2006 for judgment by admissions to admit a will to probate in circumstances where the validity of a codicil is disputed.
Held:
1. The evidence establishes the due execution by the deceased of her will.
2. The plaintiffs are to bring into Court minutes of order reflecting these reasons.
Supreme Court Civil Rules 2006 (SA) r 235, r 205(2), r 83(4); Administration and Probate Act 1919 (SA) s 69, referred to.
Tschirn v Australian Executor Trustees Ltd [2016] SASC 149; In Re Plant [1926] P 139; Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, discussed.
Moon v Mun [2013] NSWCA 217; Trenbath v Trenbath [2014] SASC 50; Re The Trademarks Act 1955-1958 and the Registered Trademarks “Certina” and “Certina DS” (1970) 44 ALJR 191; In the Estate of Martin [1958] SASR 365; In the Goods of Loveday [1900] P 154; Estate of Kouvakas [2014] NSWSC 786, considered.

AOUKAR & ANOR v NEMER & ORS

[2019] SASC 218

STANLEY J:

Introduction

This is an application for judgment by admissions to admit a will to probate in circumstances where the validity of a codicil is disputed.
The application is made pursuant to SCR 235.
Linda Nemer (the deceased) died on 10 October 2017. The deceased made a will on 23 July 2015 (the will). The will appointed the plaintiffs as the executors of the deceased’s estate.
There is a codicil to the will dated 24 May 2017 (the codicil). The codicil does not affect the appointment of the plaintiffs as the executors of the deceased’s estate. It makes changes to sub-clauses 3.4, 3.6, 3.8 and clause 6.
The plaintiffs commenced an action seeking an order that the will and the codicil be admitted to probate in solemn form.
Pursuant to SCR 205(2) the defendants to the action are Paul Nemer (Paul), George Nemer (George), Leslie Nemer (Leslie), Donia Yammine (Donia), Pauline Khoury (Pauline) and Marie Andonopoulos (Marie).
Paul, George and Leslie have filed a defence in the action. By their defence they admit the validity of the will and that it should be admitted to probate. They dispute the validity of the codicil.
Donia, Pauline and Marie have been served but have not filed a notice of address for service or a defence.
There is another brother, Joseph Richard Nemer, who except in respect of a statute, is not a beneficiary of the deceased’s estate. He was disjoined as a defendant to the action.

Power to grant judgment

SCR 235 provides:
235—Judgment on admissions
(1) The Court may, on application by a party, give judgment on the basis of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aoukar v Nemer

Details

AGLC: Aoukar v Nemer [2019] SASC 218
Case: [2019] SASC 218
Decision Date: 24 December 2019

CaseChat Overview and Summary

The case of Aoukar v Nemer involved a dispute over the validity of a codicil to a will, specifically challenging the distribution of the deceased's estate. The parties involved in the dispute were Sonia and Brian Aoukar, the children of the deceased, and Paul, George, and Leslie Nemer, other children of the deceased. The court was tasked with determining the formal validity of the will, particularly focusing on the codicil which altered the distribution of the estate. The matter was heard in the Supreme Court of South Australia.

The primary legal issue before the court was whether the codicil to the deceased's will was validly executed, thereby affecting the distribution of her estate. The court needed to consider the formal requirements for the execution of a will, including whether there was proper witnessing and whether the deceased had the requisite testamentary capacity at the time of executing the codicil. The court also had to assess whether the evidence provided, including affidavits from various parties, was sufficient to establish the due execution of the will.

The court, in its decision, found that the evidence presented established the due execution of the deceased's will, including the codicil. The court was satisfied that the requirements of SCR 235 were met, and that it was just to award judgment on the basis of admissions. The court exercised its discretion to grant judgment without regard to the merits of the parties' contentions, as the position was decisively depicted and the correct outcome unambiguously obvious. The court concluded that the codicil was validly executed and that the distribution of the estate as specified in the codicil should stand.

The final orders of the court affirmed the validity of the codicil to the deceased's will, thereby upholding the distribution of the estate as per the codicil. The court found in favor of the plaintiffs, Sonia and Brian Aoukar, confirming the validity of the codicil and the resulting distribution of the estate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SCR 235 provides:235—Judgment on admissions(1) The Court may, on application by a party, give judgment on the basis of admissions.(2) The Court may give judgment under this rule even though the judgment does not resolve all issues between the parties. Pursuant to SCR 235 the Court must be satisfied, on evidence, of the formal validity of the will. I am satisfied that the evidence establishes the due execution by the deceased of her will. The Court has a discretion as to whether to grant judgment. The power to award judgment on admissions on the pleadings is properly exercisable where the Court can see that a clear and unanswerable case is advanced on the pleadings, with the position so decisively depicted and the correct outcome so unambiguously obvious that there is simply no need for any issue to go to trial. The evaluative question relevant to exercise of the discretion is whether it is just to award judgment without regard to the merits of the parties’ contentions. I received evidence by way of affidavits from Marie Antoniette Nemer sworn 26 April 2018, Jessica Marie Connell sworn 26 April 2018 both filed in the probate action 1604 of 2018, affidavits of the first plaintiff Sonia Marie Aoukar (Sonia) sworn 7 November 2018, 21 June 2019 and 22 August 2019, Norma Therese Nemer sworn 1 May 2019, three affidavits of Sarah Kathleen Annicchiarico affirmed 21 June 2019, 23 July 2019 and 22 August 2019, an affidavit of the second plaintiff, Brian Aoukar (Brian), filed 22 August 2019 and an affidavit of Andrew Donald Lovelock Woods sworn 14 June 2019 in action 724 of 2019. Paul, George and Leslie are three of the eight children of the deceased. They are the residuary beneficiaries of the deceased’s estate under her will. The first plaintiff Sonia is a daughter of the deceased. The other three daughters are Donia, Pauline and Marie. The second plaintiff, Brian, is Sonia’s husband. The deceased was married to Antoine George Nemer (Antoine). Antoine predeceased his wife. He left a will dated 23 July 2015. Letters of administration of that will were issued on 4 November 2016. His estate is substantial. Although Antoine’s will is complex, the deceased was the residuary beneficiary of his estate. Pursuant to the deceased’s will, the residue of her estate is distributed 25 per cent to George, 37.5 per cent to Paul and 37.5 per cent to Leslie. A specific bequest is made in favour of Sonia, Donia, Pauline and Marie in equal shares of any money standing to the deceased’s credit at the date of her death in any bank account or investment account situated in Australia held in her personal name. The evidence is that is an amount of approximately $972,000.00. The effect of the codicil is to redirect away from the residuary estate, assets of the deceased, including moneys held in foreign bank accounts and assets to which she is entitled under her late husband’s will, to Sonia, Donia, Pauline and Marie. The codicil effects a fundamentally important change in the distribution of the deceased’s estate given the likely magnitude of her interest in the estate of Antoine. That has not yet been determined because of difficulties and uncertainties which have been encountered by the administrators of Antoine’s estate which are the subject of an application for advice and direction pursuant to s 69 of the Administration and Probate Act 1919 (SA) (the Act).

Ratio Decidendi

Legal Principle Established

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