Bkassini v Sarkis

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.