Erem v Moussa

Case [2024] NSWSC 641


Supreme Court


New South Wales

  • Amendment notes
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

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

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Legal Principle Established

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