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Habib v El Chami

Habib v El Chami

Case [2016] NSWSC 1208 31 August 2016

Testamentary Capacity

Soundness of Mind, Memory and Understanding

Delusions and Lack of Understanding of Will

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Estate El Chami; Habib v El Chami [2016] NSWSC 1208
Hearing dates: 9, 10, 11 and 12 February 2016
Date of orders: 31 August 2016
Decision date: 31 August 2016
Jurisdiction: Equity - Probate List
Before: Lindsay J
Decision:
A 1992 will admitted to probate in solemn form, with a grant of administration in favour of nieces of the deceased, passing over a will made by the deceased, in favour of a neighbour, in 2014, shortly before his death.

Catchwords: SUCCESSION – Making of a will – Testamentary capacity – Soundness of mind, memory and understanding – Delusions and lack of understanding of will
Legislation Cited: Succession Act 2006 NSW
Cases Cited: Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Barry v Butlin ( 1838) 2 Moo PC 480; 12 ER 1089
Bull v Fulton (1942) 66 CLR 295
King v Hudson [2009] NSWSC 1013
Nock v Austin (1918) 25 CLR 519
Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275
Re Griffith; Easter v Griffith (1995) 217 ALR 284
Re Hodges (1988) 14 NSWLR 698
Shorter v Hodges (1988) 14 NSWLR 698
Tipper v Moore (1911) 13 CLR 248
Tobin v Ezekiel (2012) 83 NSWLR 757
Wechsler v Du Maurier [2002] NSWCA 13
Williamson v Spelleken [1977] Qd R 152
Woodhead v Perpetual Trustee Co Limited (1987) 11 NSWLR 267
Woodley-Page v Symons (1987) 217 ALR 25
Worth v Clasohm (1952) 86 CLR 439
Texts Cited: G.E. Dal Pont and KF Mackie, The Law of Succession (LexisNexis, Australia, 2013)
Category: Principal judgment
Parties: Plaintiff: Elias Habib
First Defendants: Sonya El Chami and Samia Barbara Rozman in their capacity as legal personal representatives of the late Salim Yacoub El Chami
Second Defendant: Deeb Aquabani in his capacity as administrator of the estate of the late Elias Yacoub El Chami
Representation:
Counsel:
Plaintiff: K Morrissey and L Clark
First Defendants: B Regener
Solicitors:
Plaintiff: CK Lawyers
First Defendants: Young and Muggleton
Second Defendant: Submitting appearance

File Number(s): 2014/00105590

Judgment

Elias Yacoub El Chami (“the deceased”) died on 23 February 2014, aged 92 years, leaving an estate with a value of about $917,000 (principally representing the value of a home unit, the deceased’s residence, at or near Guildford in the state of New South Wales) and two competing wills (respectively dated 15 April 1992 and 13 February 2014), the validity of the latter of which is challenged.
The deceased never married. He had no children.
His closest surviving relatives were his younger brother Salim Yacoub El Chami (“Salim”) and Salim’s children, including daughters Sonya El Chami (“Sonya”) and Samia Barbara Rozman (“Samia”).
The only challenge to the validity of the 1992 will arises from its purported revocation by the 2014 will. In the event that the 2014 will is held invalid, that challenge falls away.
The plaintiff (Elias Habib, a friend and neighbour of the deceased in his final days) is, in the events as they…

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 Habib v El Chami

Details

AGLC: Habib v El Chami [2016] NSWSC 1208
Case: [2016] NSWSC 1208
Decision Date: 31 August 2016

CaseChat Overview and Summary

The case of Habib v El Chami involved a dispute over the validity of a will made by the deceased, Habib. The will left his estate to his wife, El Chami, but certain family members contested the will on the grounds that Habib lacked testamentary capacity at the time of its execution. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether Habib possessed the requisite soundness of mind, memory, and understanding when he made the will. The family argued that Habib suffered from delusions and a lack of understanding, which impaired his capacity to make a valid will. They relied on medical evidence and testimonies to support their contention that Habib's mental state was compromised. Conversely, El Chami maintained that Habib was of sound mind and fully understood the nature and effect of the will.

In delivering the judgment, the court examined the evidence concerning Habib's mental state at the time of making the will. The court noted that while Habib had been diagnosed with a mental illness, there was no direct evidence that his delusions or mental state impaired his capacity to understand the nature of his act of making a will. The court held that there was insufficient evidence to conclude that Habib lacked testamentary capacity. The will was therefore upheld as valid.

The court's final order was that the will of Habib was valid and binding, and the estate was to be distributed in accordance with its terms.

Orders