Chehade v El Khoury - [2020] NSWSC 563

Supreme Court

New South Wales

Medium Neutral Citation: Estate of Baissari; Chehade v El Khoury [2020] NSWSC 563
Hearing dates: 11 May 2020
Date of orders: 11 May 2020
Decision date: 11 May 2020
Jurisdiction: Equity
Before: White J
Decision:
Refer to paras [45], [46] and [48].

Catchwords:
CIVIL PROCEDURE – settlement of proceedings – enforcement of settlement – whether binding agreement to settle the proceedings was formed – whether Court should exercise its discretion not to enforce a settlement – whether legal representative was acting under a mistake, or misapprehension as to her authority
SUCCESSION – Probate and administration – Entitlement to grant of Probate – Contested proceedings – whether grant of Probate in solemn form be made – where parties reached agreement not to further contest an application to obtain a grant of Probate in solemn form - grant of Probate a public act not made as a matter of course – where balance of evidence supports the validity of the Will
Legislation Cited: Civil Procedure Act 2005 (NSW), s 73
Cases Cited: Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786
Harvey v Phillips (1956) 95 CLR 235
Hickman v Berens (1895) 2 Ch 638
Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13
Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528
Neale v Lennox [1902] AC 465
Pemberton v Pemberton (1807) 13 Ves Jun 290; 33 ER 303
Shepherd v Robinson [1919] 1 KB 474
Category: Principal judgment
Parties: Maurice Chehade (Plaintiff)
Father Boutros George El Khoury (Defendant)
Representation:
Counsel:
C Hodgson (Plaintiff)
R Mitry, Amicus Curiae (Defendant)
Solicitors:
Greenaway & Tohme Lawyers (Plaintiff)
n/a (Defendant)

File Number(s): 2017/269374

Judgment

HIS HONOUR: This is an application for the grant of probate in solemn form of the will of the late Mary Mariam Baissari, dated 13 November 2005. The deceased died on 10 July 2017, aged 91. She had been married to Youssef Baissari (“Youssef”). He died on 12 July 2011.
On 13 November 2005, the deceased and Youssef each signed a will or what purports to be a will. The deceased appointed her husband as her executor and left her whole estate to him if he survived her for 30 days. If he did not, as in fact he did not, the will appointed the plaintiff Maurice Chehade and his wife, Houda Chehade, to be her executors and she left her entire estate to them as tenants in common in equal shares. Youssef's will mirrored that of his wife.
The inventory of the deceased's estate filed with the application for probate estimated its value as at 11 December 2017 to be $869,800. The estate consisted principally of a house in Auburn.
The plaintiff, Maurice Chehade, deposed on 11 December 2017 that his wife was medically unfit either to accept or renounce her position as executrix. She died on 2 January 2018. Letters of administration of her estate were granted to the plaintiff on 21 May 2018. The plaintiff and his wife were…

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 Chehade v El Khoury

Details

AGLC: Chehade v El Khoury [2020] NSWSC 563
Case: [2020] NSWSC 563
Decision Date: 11 May 2020

CaseChat Overview and Summary

The case of Chehade v El Khoury involved a dispute between the respondents and the deceased's estate, focusing on the validity of a Will and the enforcement of a settlement agreement. The respondents contested the grant of Probate, questioning the validity of the Will. The parties eventually reached an agreement to cease contesting the grant of Probate in solemn form. The High Court was tasked with determining whether this agreement was binding and should be enforced, as well as whether the Court should exercise its discretion not to enforce the settlement. The court also had to consider whether the legal representative acted under a mistake or misapprehension regarding her authority.

The primary legal issues before the court were whether a binding agreement to settle the proceedings had been formed and, if so, whether the Court should enforce it. The court had to examine the circumstances under which the agreement was made, including whether the legal representative acted under a mistake or misapprehension as to her authority. Additionally, the court needed to consider the public nature of the grant of Probate and whether the agreement to cease contesting it should be enforced despite the balance of evidence supporting the validity of the Will.

The High Court held that the agreement to cease contesting the grant of Probate in solemn form was binding and should be enforced. The court found that the legal representative did not act under a mistake or misapprehension as to her authority. The court emphasised that the grant of Probate is a public act and not made as a matter of course. The balance of evidence supported the validity of the Will, but this did not affect the enforceability of the settlement agreement. The court concluded that the agreement was valid and should be enforced, and that the grant of Probate in solemn form should proceed as per the agreement.

The final orders of the court were that the agreement to cease contesting the grant of Probate in solemn form was binding and should be enforced. The court ordered that the grant of Probate in solemn form should proceed as per the agreement. The court did not exercise its discretion to not enforce the settlement agreement, finding that the legal representative acted within her authority and that the agreement was valid. The court's decision reinforced the enforceability of settlement agreements in proceedings involving the grant of Probate, even where the validity of a Will is contested.

Orders