1-5 May 2017; final written submissions delivered on 28 June 2017.
Decision Date:
1 November 2017
Jurisdiction:
Equity
Before:
Robb J
Decision:
Refer to paragraphs 417 and 418.
Catchwords:
SUCCESSION — Family provision — Application for family provision order — Application made out of time — Whether leave to make application out of time should be granted — Where deceased appointed daughter as trustee of discretionary trust — Where deceased executed a memorandum of wishes instructing daughter to pay income from trust to her father — Where daughter paid income to father for eight years — Where father remarried and daughter ceased making payments — Where father failed to lodge family provision application for a further two and a half years — Whether father can show sufficient cause.
SUCCESSION — Family provision — Application for family provision order — Where deceased left half interest in two properties — Where plaintiff was the husband of the deceased and resided in one of the properties — Whether plaintiff should be allowed to continue to reside in one of the properties — What orders should be made.
REAL PROPERTY — Tenants in common — Exclusion — Whether plaintiff excluded defendant from property — Whether defendant entitled to occupation fee or mesne profits — Where plaintiff changed locks — Where defendant had interest in property as trustee of testamentary trust.
JD Heydon, M Leeming and P Turner, Meagher, Gummow and Lehane’s: Equity: Doctrines & Remedies (Lexis, 5 ed, 2014). JD Heydon, M Leeming, Jacob’s Law of Trusts in Australia (Lexis, 8 ed, 206).
Category:
Principal judgment
Parties:
William Bkassini (plaintiff) Sonya Sarkis (defendant)
Representation:
Counsel: G McNally SC (plaintiff) CD Wood (defendant)
Solicitors: Colin Daley Quinn Solicitors (plaintiff) MJM Lawyers (defendant)
File Number(s):
2015/27946
TABLE OF CONTENTS
Introduction_Toc496886484
The deceased’s will and memorandum of wishes_Toc496886485
The events leading to this application_Toc496886486
The claims made by the parties_Toc496886487
Money claims made by…
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.
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Details
AGLC
Bkassini v Sarkis [2017] NSWSC 1487
Case
[2017] NSWSC 1487
Decision Date
CaseChat Overview and Summary
The case of Bkassini v Sarkis involved a family provision application made by the deceased's daughter against the deceased's estate. The central dispute was whether the daughter should be granted a family provision order despite the application being made out of time. The deceased had appointed the daughter as trustee of a discretionary trust and executed a memorandum of wishes instructing her to pay income from the trust to her father. The daughter complied with these instructions for eight years but ceased payments after her father remarried. The father did not lodge a family provision application for a further two and a half years. The court had to decide whether the father could show sufficient cause for the delay and whether the daughter could be excluded from the property.
The legal issues before the court included whether the father could be granted leave to make the family provision application out of time and whether the daughter should be excluded from the property. The court had to consider the circumstances of the delay, the nature of the relationship between the father and daughter, and the daughter's actions in administering the trust. Additionally, the court needed to determine whether the plaintiff, who was the husband of the deceased and resided in one of the properties, should be allowed to continue to reside in one of the properties and what orders should be made regarding the division of the properties.
The court held that the father could not show sufficient cause for the delay in making the family provision application, and therefore, the application was dismissed. The court found that the father's delay was unreasonable and that there was no compelling reason to excuse the delay. Regarding the exclusion of the daughter from the property, the court found that the daughter had not excluded the father from the property as she had a legal right to reside there as a tenant in common. The court also found that the father was not entitled to an occupation fee or mesne profits. The court ordered that the plaintiff could continue to reside in one of the properties and that the properties should be divided equally between the parties.
The court's final orders were that the family provision application be dismissed, the daughter was not to be excluded from the property, and the properties were to be divided equally between the parties. The court held that the father had not shown sufficient cause for the delay in making the application and that the daughter had not excluded the father from the property. The court also found that the plaintiff could continue to reside in one of the properties.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Ms Barber said that she advised the deceased on how to unilaterally sever the joint tenancy of No 95 with William after the deceased “pleaded” with her for advice about how to protect her share of the property for the children. She said that she prepared the relevant documentation for the deceased and met with both the deceased and Sonya in early 1994, but did not lodge the document for registration. Sonya in her affidavit dated 12 April 2016 stated that she herself completed the registration.Evidence of William and his witnesses In his affidavit dated 14 September 2016, William admitted to having an affair in 1977 but said that he was never unfaithful to the deceased again. He said that he and the deceased were never estranged or separated. He described how he helped the deceased dress herself and get to appointments when she became sick, and did things around the house such as washing up. In response to Sonya’s claim that he told the deceased that he could not wait for her to die, William said: “I strongly deny ever saying such a thing…” As to the allegations of abuse, William denied that he was violent towards his wife other than one “incident in South Hurstville some 40 years ago”. He said that the only times that an ambulance was called to their home in South Hurstville were to take the deceased to hospital when she was about to give birth and when she experienced a miscarriage. During cross-examination, counsel for Sonya asked William whether he hit the deceased with a closed fist during the incident in South Hurstville. William denied hitting his wife with a closed fist during that incident and indicated that he hit her with the back of his hand. Counsel for Sonya also asked William if he remembered an apprehended domestic violence order in 1992. William said that he remembered and said that he often got into fights with his children. Counsel then asked him if he hit or slapped the deceased when these fights occurred. William said that he pushed the deceased when she intervened in the fights. Sam Bkassini, in his affidavit dated 13 September 2016, gave evidence that he never witnessed William lay a hand on the deceased and went so far as to say that he “personally would have attacked him had he done so as would have Sid”. He also gave evidence that he was aware of the affair that William had with a woman named Layla, and that William had said that it was a mistake of which he was not proud. He said that William had always denied having an affair with Linda Khoury. Sam Bkassini’s wife, Maria Bkassini, gave evidence in her affidavit dated 13 September 2016 that the deceased never mentioned being separated from William and that William helped his wife in the kitchen and around the house, and with getting out of bed, after she became ill. William’s remaining witnesses consisted of various other relatives and friends. These witnesses included: Camille Hawa, the brother-in-law and second cousin of the deceased; Gaby Hawa, Mr Hawa’s daughter and a niece of the deceased; Hanna Nader, one of Mr Hawa’s nieces and a family friend of the Bkassinis; and Elias Sarkis, William’s first cousin. Each of these witnesses gave evidence that they never knew the deceased and William to have separated and that William looked after the deceased when she became ill. Ms Nader and Mr Sarkis in particular gave evidence that they never recalled hearing or seeing William being violent or abusive to the deceased.