Estate of the Late Lily Elizabeth Khalifeh
[2011] NSWSC 388
•11 April 2011
Supreme Court
New South Wales
Medium Neutral Citation: Estate of the Late Lily Elizabeth Khalifeh [2011] NSWSC 388 Hearing dates: 11 April 2011 Decision date: 11 April 2011 Jurisdiction: Equity Division Before: Ball J Decision: See paragraph 15 of the judgment
Catchwords: WILLS AND ESTATES - validity of the will - capacity of testator - fraud - removal of caveat Category: Procedural and other rulings Parties: Charles Peter Khalifeh and Joseph Patrick Khalifeh (as Executors for the Estate of Lily Elizabeth Khalifeh) (Plaintiffs)
Therese Keane (Defendant)Representation: Counsel:
A Maroya (Solicitor) (Plaintiffs)
Christian Khalifeh (Power of Attorney) (Defendant)
Solicitors:
Shad Partners (Plaintiffs)
File Number(s): 2010/424021
EX TEMPORE Judgment
The plaintiffs in this matter are two sons of the late Lily Elizabeth Khalifeh. By a will made on 29 October 2008, the deceased appointed the plaintiff's as her executors.
By that will, the deceased left her house in, Lidcombe to her daughter Alyce. The deceased left the remainder of her estate to be divided between her remaining eight children.
Probate of the will was granted on 18 May 2010 but was subsequently revoked after the defendant, one of the deceased's daughters, lodged a caveat. In fact, the defendant has lodged three caveats.
It appears from at least one of these caveats that the defendant contends, to use the language of the Supreme Court Rules, Part 78, Rule 69(4), that there is "some matter occasioning doubt as to whether the grant ought to be made", because the deceased was either the subject of undue influence at the time she made her will or that she lacked testamentary capacity.
On 22 December 2010, the plaintiffs filed the Summons in this matter seeking an order pursuant to Part 78 Rule 69(1) that the caveat against the grant of probate ceased to be in force.
The circumstances in which the will was executed are set out in the affidavit of Charles Khalifeh. Mr Charles Khalifeh states that he took his mother to Mr Tarmo, a solicitor, at his mother's request, in order for his mother to make a will. Mr Tarmo took instructions and prepared a will. Subsequently, Mr Charles Khalifeh took his mother back to see Mr Tarmo to execute the will. The will was witnessed by Mr Tarmo and assistant of Mr Tarmo's.
The defendant was represented by leave by her older brother, Christian Khalifeh.
In support of the submission that the deceased lacked testamentary capacity. Mr Christian Khalifeh pointed to statements the deceased had made on various occasions in which she had said that she did not understand documents relating to the disposition of her assets, and to some discrepancies between the will in question and an earlier will made by the deceased in July 2008.
In my opinion there is no evidence before me to suggest that the deceased lacked testimony capacity at the time she made her will.
The fact that the deceased may have said on one or more occasions in relation to another document at another time that she did not understand what the document meant does not mean that she lacked testamentary capacity at the time she made her will. No evidence has been brought forward to suggest that she did not understand the will that she made. The circumstances in which it was executed suggest the opposite. The deceased had the benefit of legal advice, and the solicitor who gave that legal advice was clearly independent of any family member. Mr Tarmo witnessed the will and it is hard to believe he would have done so if there had been any doubt in his mind that the deceased lacked testamentary capacity.
So far as the discrepancies in the two wills are concerned, they are in my opinion, minor. Mr Christian Khalifeh says the deceased failed to pick up the fact that Philip Khalifeh's name was incorrectly spelt as "Phillip" in the will in question. Minor discrepancies of that sort are not evidence that the deceased lacked testamentary capacity.
There are three problems with the case based on undue influence. First, there is no direct evidence of undue influence or fraud. Indeed, there is no real attempt by the defendant to identify who exerted any undue influence or how it was exerted on the deceased at the time the deceased made the will in question.
Secondly, the circumstances in which the will was executed counts against the suggestion that there has been any undue influence. As I have said, the deceased was taken to the offices of an independent solicitor. It was he who drew up the will and it was he who witnessed the deceased's signature. All that occurred in the solicitor's offices.
Thirdly, there is evidence that on or about 24 August 2008 the deceased prepared a document in her own hand that explains why she made the will that she did. That document is inconsistent with the suggestion that there has been any undue influence on the deceased.
In those circumstances I make an order in terms of paragraph 1 of the summons. I can see no reason why the defendant should not pay the plaintiff's costs of the proceedings. Consequently I make that order as well.
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Decision last updated: 09 May 2011
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