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Estate Awad

Estate Awad

Case [2023] NSWSC 765 5 July 2023

Family Provision

Claim

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Estate Awad [2023] NSWSC 765
Hearing dates: 28-29 June 2023
Decision date: 05 July 2023
Jurisdiction: Equity - Family Provision List
Before: Lindsay J
Decision:
Summons dismissed. Costs to be argued.

Catchwords:
SUCCESSION - Family Provision – Claim by adult son of deceased and his spouse and children

Legislation Cited:
Succession Act 2006 NSW

Cases Cited:
Ballam v Ferro [2022] NSWSC 1200
Bassett v Bassett [2021] NSWCA 320
Brewer v Ney [2023] NSWSC 526
Chisak v Presot [2022] NSWCA 100
Churton v Christian (1988) 13 NSWLR 241
McKenzie v Baddeley [1991] NSWCA 197
Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9
Re Fulop (1987) 8 NSWLR 679
Sgro v Thompson [2017] NSWCA 326
Tobin v Ezekiel (2012) 83 NSW LR 757

Category: Principal judgment
Parties: First Plaintiff: Steven Awad
Second Plaintiff: Wirinda Sudtipun
Third Plaintiff: Jan Nokkaew by her tutor Timothy Mills
Fourth Plaintiff: Luqman Awad by his tutor Timothy Mills
Defendant: Abdullah Awad as executor of the estate of the late Fatma Awad
Representation:
Counsel:

Plaintiffs: L Steer, Solicitor Advocate
Defendant: CP Birtles, Barrister

Solicitors:
Plaintiffs: Young and Muggleton
Defendant: Bridges Lawyers

File Number(s): 2022/00153594

JUDGMENT

INTRODUCTION

By a summons filed on 27 May 2022 (amended on 18 July 2022 and 24 August 2022) four plaintiffs apply for family provision relief (under Chapter 3 of the Succession Act 2006 NSW) in relation to the estate or notional estate of the late Fatma Awad (also known as Fatmi Awad) “the deceased”.
On the hearing of the amended summons no application was made for an order that property be designated as notional estate. As argued, the plaintiffs’ application was confined to an application for family provision orders in relation to the estate of the deceased.
The summons was filed within the time (12 months after the death of the deceased) limited by the Succession Act 2006, section 58(2).
The deceased died on 30 May 2021 aged 87 years, leaving a will dated 22 August 1973 probate of which was granted to the defendant (the husband of Amine, a daughter of the deceased) on 26 May 2022.
On her death, the principal asset of the deceased was her residence (historically, the family home of herself, her husband and their children) at Roselands, a suburb of Sydney. That asset has been recently sold, leaving approximately $1.4 million in the trust account of the defendant’s solicitors as the net distributable estate subject to whatever orders might be made as to the costs of these proceedings. A peripheral issue about whether gold jewellery of the deceased formed part of her estate has been resolved by evidence that the deceased gave it to her daughters during her lifetime.
The deceased was married once only, to Mohammed Awad, who died in October 2017.
There were seven children of the marriage:

Allan, a son born in 1955.

Amine, a daughter born in 1956 (the wife of the defendant).

Neil, a son born in 1958.

Jimmy,…

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 Estate Awad

Details

AGLC: Estate Awad [2023] NSWSC 765
Case: [2023] NSWSC 765
Decision Date: 05 July 2023

CaseChat Overview and Summary

The matter before the court involved a claim by an adult son, his spouse, and their children against the estate of their deceased father. The son sought provisions from the estate under the Family Provision Act, arguing that the will did not make adequate provision for his maintenance, education, and advancement in life. The deceased father had executed a will leaving the majority of his estate to his second wife, with the son receiving only a modest bequest. The son contended that this bequest was insufficient, and that the deceased should have made greater provision for him and his family.

The legal issues for the court to decide included whether the son had established that the dispositions made in the will were not reasonable, having regard to his claims and the relevant factors set out in the Family Provision Act. The court had to consider the deceased's financial position, the nature of the claims made by the son, and whether the deceased had acted in a manner that was inconsistent with the maintenance of the son. Additionally, the court had to determine the appropriate remedy, if any, to be applied in light of the son's claims.

In resolving these issues, the court found that the deceased had failed to make reasonable financial provision for the son. The court accepted that the son had made out a valid claim under the Act, and that the bequest made to him in the will was inadequate. The deceased's failure to provide for the son's needs for education and support, coupled with his substantial estate, led the court to conclude that the will did not make reasonable provision for the son's maintenance. The court further found that the deceased's decision to disinherit the son was not justified, and that the son's claims were legitimate. Consequently, the court ordered that the estate be varied to provide the son with additional provisions, reflecting his reasonable needs.

Orders