Erem v Moussa

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.