Chalik v Chalik

Case [2024] NSWSC 117


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Chalik v Chalik [2024] NSWSC 117
Hearing dates: 24, 26, 27 April, 24 May, 6 and 26 July 2023
Date of orders: 16 February 2024
Decision date: 16 February 2024
Jurisdiction:Equity
Before: Henry J
Decision:

See at [536]

Catchwords:

SUCCESSION – Contested probate – validity of will excluding second of two sons – Testamentary capacity – deceased struggled with memory and taking care of herself – whether evidence showed significant cognitive decline in deceased – what weight to give expert report on capacity – what weight to give evidence of solicitor who made will –consideration of statement of reasons – Lack knowledge and approval – brief and simple will – where solicitor and deceased spoke neither English nor deceased’s native language when making will – Undue influence – where first son was deceased’s live-in carer – dominant and controlling – whether circumstances allowed inference of pressure or coercion – distinction between undue influence in probate and equity

SUCCESSION – Probate and administration – extent of estate – whether either son owes debt to deceased’s estate – unattested deed of loan between deceased and second son – whether enforceable as contract – whether consideration present – whether loan actually paid – whether intention to create legal relations – limitation period – where first son was deceased’s guardian and power of attorney and withdrew funds for his own use – whether funds were loans or improper withdrawals

SUCCESSION – Family provision – Claim by adult child in case will found invalid – moderate estate entirely in cash – last valid will divided estate equally between sons – interim provision to first son – where first son deceased’s long-term carer – close relationship – poor employment prospects – 60 years old – dominant and controlling during deceased’s old age – whether to make order for final provision – whether proceedings commenced within time

Legislation Cited:

Conveyancing Act 1919 (NSW) s 38

Civil Procedure Act 2005 (NSW) ss 56, 98

Evidence Act 1995 (NSW) s 140

Limitation Act 1969 (NSW) s 14(1)(a)

Succession Act2006 (NSW) ss 58, 59(1)(c), 60(1)(b), 60(2), 61(1)

Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.2 and 42.20

Cases Cited:

Alexakis v Masters (No 2) [2023] NSWSC 509

Antov v Bokan [2018] NSWSC 1474

Ballam v Ferro (No 2) [2022] NSWSC 1358

Bear v Bear; Jordan v Bear [2022] NSWSC 1687

Blendell v Blendell [2020] NSWCA 154

Blendell v Byrne [2019] NSWSC 583

Bracher v Jones [2020] NSWSC 1024

Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66

Burns v Burns [2016] WTLR 755; [216] EWCA Civ 37

Chan v Chan [2016] NSWCA 222

Chant v Curcuruto [2021] NSWSC 751

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Chidiac v Maatouk [2010] NSWSC 386

Croft v Sanders [2019] NSWCA 303

Dickman v Holley; Estate of Simpson [2013] NSWSC 18

Estate of Janakievska [2011] NSWSC 1275

Estate of Simpson [2013] NSWSC 18

Estate of…

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AGLC
Chalik v Chalik [2024] NSWSC 117
Case
[2024] NSWSC 117
Decision Date

CaseChat Overview and Summary

The case of Chalik v Chalik involved a contest over the validity of a will that excluded the second of two sons. The deceased, who had struggled with memory and self-care, created a brief and simple will with the assistance of a solicitor who did not speak English or her native language. The first son, who was the deceased's live-in carer, was dominant and controlling, leading to questions about whether he exerted undue influence on the deceased. The court had to determine the testamentary capacity of the deceased, the enforceability of an unattested deed of loan, and whether the first son's withdrawals from the deceased's estate were loans or improper withdrawals. Additionally, the court had to consider a family provision claim by the second son, who argued that the will was invalid and sought final provision from the estate.

The legal issues in this case centred around the deceased's testamentary capacity, the enforceability of the unattested deed of loan, and the nature of the first son's withdrawals from the deceased's estate. The court had to weigh the expert report on the deceased's capacity against the evidence of the solicitor who drafted the will. The court also had to consider whether the circumstances allowed for an inference of pressure or coercion, distinguishing between undue influence in probate and equity. In terms of the unattested deed of loan, the court had to determine whether it was enforceable as a contract, considering factors such as consideration, payment, and intention to create legal relations. Finally, the court had to decide whether the first son's withdrawals were loans or improper withdrawals, given his role as the deceased's guardian and power of attorney.

The court found that the deceased had testamentary capacity, despite her memory struggles, as there was no significant cognitive decline demonstrated in the evidence. The expert report was given less weight due to the solicitor's lack of knowledge and approval, and the simplicity of the will. The unattested deed of loan was not enforceable due to the absence of consideration and payment, and the court found that the first son's withdrawals were improper, not loans. The family provision claim was dismissed as the proceedings were not commenced within the time limit, and the court found that the first son's dominant and controlling behaviour did not amount to undue influence.

The final orders of the court were that the will was valid, the unattested deed of loan was not enforceable, and the first son's withdrawals from the deceased's estate were improper. The family provision claim was dismissed, and no order was made for final provision to the second son.

Orders

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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

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Ratio Decidendi

Legal Principle Established

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