Medium Neutral Citation: Erem v Moussa [2024] NSWSC 641
Hearing dates: 5–15 and 21 March 2024
Date of orders: 15 October 2024
Decision date: 15 October 2024
Jurisdiction: Equity - Succession & Probate List - Probate
Before: Richmond J
Decision:
See [301]–[304]

Catchwords:
SUCCESSION — Contested probate — Testamentary capacity — Application of test in Banks v Goodfellow — Whether deceased suffering from delusions that affected the provisions of the will
SUCCESSION — Probate and administration — Rectification of wills
SUCCESSION — Family provision — Claim by de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made
LAND LAW — Co-ownership — Severance of joint tenancy
EQUITY — Trusts and trustees — Resulting trusts
ESTOPPEL — Proprietary estoppel — Encouragement

Legislation Cited:
Evidence Act 1995 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Real Property Act 1900 (NSW)
Succession Act 2006 (NSW)

Cases Cited:
Banks v Goodfellow (1870) LR 5 QB 549
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886
Crago v McIntyre [1976] 1 NSWLR 729
Crouch v Hooper (1852) 16 Beav 182; 51 ER 747
Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84
Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15
Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24
Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17
Gooley v Gooley [2020] NSWSC 798
Gooley v Gooley [2021] NSWSC 56
Goyal v Chandra [2006] NSWSC 239; (2006) 68 NSWLR 313
Hamill v Wright [2018] QSC 197
Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
Jones v Dunkel (1959) 101 CLR 298
Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 220
Moore v Aubusson [2020] NSWSC 1466
Perochinsky v Kirschner [2013] NSWSC 400
Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275
Priestley v Priestley [2017] NSWCA 155
Q(a pseudonym)v E Co (a pseudonym) (2020) 383 ALR 469; [2020] NSWCA 220
Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284
Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547
Re O’Neil, (dec’d) [1972] VR 327
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Spata…

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 Erem v Moussa

Details

AGLC: Erem v Moussa [2024] NSWSC 641
Case: [2024] NSWSC 641
Decision Date: 15 October 2024

CaseChat Overview and Summary

The case of Erem v Moussa involved a dispute concerning the validity of a will, the distribution of the estate under the Succession Act 2006 (NSW), and claims by the deceased's de facto partner for provision from the estate. The plaintiff, Erem, sought to contest the probate of the will on the basis that the deceased, Moussa, was suffering from delusions that affected the provisions of the will. Additionally, Erem sought rectification of the will and a claim for provision under the Succession Act. The case was heard in the Supreme Court of New South Wales.

The court was required to determine whether Moussa was suffering from delusions that impacted his testamentary capacity at the time of making the will. This involved applying the test established in Banks v Goodfellow, which requires a consideration of whether the deceased had a sound and disposing mind and whether any delusions had affected the provisions of the will. The court also had to consider whether the deceased had made proper and adequate provision for Erem and, if not, the nature and quantum of the provision that should be made. Furthermore, the court needed to decide if there was a resulting trust in favour of Erem based on the encouragement of an expectation that she would be provided for.

The court found that Moussa did not suffer from delusions that affected his testamentary capacity and thus upheld the validity of the will. The court also determined that proper and adequate provision had been made for Erem under the will. Consequently, Erem's claim for rectification of the will and for further provision was dismissed. The court concluded that there was no basis for establishing a resulting trust or proprietary estoppel in favour of Erem.

The court ordered that the will be admitted to probate and that the estate be distributed according to the terms of the will. Erem's claims for rectification and additional provision were dismissed, and no resulting trust or proprietary estoppel was found in favour of Erem.

Orders