Ibrahim v Nasr

Case [2021] NSWSC 1321


Supreme Court


New South Wales

Medium Neutral Citation: Ibrahim v Nasr [2021] NSWSC 1321
Hearing dates: 27, 28, 29, 30 September, 1 October 2021
Decision date: 15 October 2021
Jurisdiction:Equity
Before: Leeming JA
Decision:

1. Stand over the proceeding for the making of orders on Thursday 21 October 2021 at 9.30am.

2. The parties to supply by email agreed orders, or in lieu of agreement the orders for which they contend, by 5pm on Wednesday 20 October 2021, concerning the making of provision from the deceased estate, costs and the right to apply for the appointment of other persons in order to achieve the sale of the Campsie property if sale is not achieved within 8 weeks of today.

3. The first defendant to supply by email any further affidavit or submission as to whether the Court should take further steps in relation to him, or alternatively any application for an extension of time for the provision of such further affidavit or submission, no later than 5pm on 20 October 2021.

Catchwords:

SUCCESSION – application for family provision order – plaintiff a widow of 17 years – plaintiff substantially younger than deceased husband – nine children of first marriage – husband’s Australian estate divided into 10% shares between plaintiff and children – whether arrangement that plaintiff would not benefit from deceased estate – whether plaintiff maltreated deceased – whether plaintiff stole from deceased – whether children maltreated plaintiff – where evident acrimony between plaintiff and children – order for provision made

LEGAL PRACTITIONERS – first defendant published series of Facebook posts vilifying plaintiff – first defendant admitted as legal practitioner – whether conduct capable of warranting professional sanction – opportunity given for first defendant to be heard

Legislation Cited:

Evidence Act 1995 (NSW), ss 128, 138, 144

Succession Act 2006 (NSW), s 58, 59, 60

Surveillance Devices Act 2007 (NSW), s 7

Cases Cited:

Averkin v Insurance Australia Ltd (2016) 92 NSWLR 68; [2016] NSWCA 122

Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136

Clifford v Mayr [2010] NSWCA 6

Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979)

DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; 95 ALJR 375

Gautam v Health Care Complaints Commission [2021] NSWCA 85

Golosky v Golosky (Court of Appeal, 5 October 1993)

Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311

Hertzberg v Hertzberg [2003] NSWCA 311

Heyward v Fisher (Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81)

Khreich v NSW Trustee & Guardian [2012] NSWSC 1299

Marshall v Carruthers [2002] NSWCA 47

Ng v Lau; In the Estate of Ken Kui Yuen Lau [2020] NSWSC 713

O'Loughlin v Low [2002] NSWSC 222

Paton v Public Trustee (NSWSC, 8 December 1988, unreported)

Steinmetz v Shannon (2010) 99 NSWLR 687; [2019] NSWCA 114

Strang v Steiner [2019] NSWCA 143

Tchadovitch v Tchadovitch (2010) 79 NSWLR 491; [2010] NSWCA 316

Uren v John Fairfax &…

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Ibrahim v Nasr [2021] NSWSC 1321
Case
[2021] NSWSC 1321
Decision Date

CaseChat Overview and Summary

The matter of Ibrahim v Nasr involved a widow, who was substantially younger than her deceased husband, seeking a family provision order from his estate. The husband had left an estate which was divided into 10% shares between the plaintiff and his nine children from a previous marriage. The plaintiff argued that the arrangement would not provide her with any benefit, while the defendants alleged that she had maltreated the deceased and stolen from him. Additionally, the defendants claimed that they had maltreated the plaintiff, with evidence of acrimony between the parties. The court had to decide whether the plaintiff was entitled to a family provision order and whether the first defendant's conduct warranted professional sanction.

The primary legal issue in this case was whether the plaintiff, being the widow, was entitled to a family provision order from the deceased's estate. The court had to consider the relevant factors under the Succession Act 2006 (NSW), including the nature of the relationship between the plaintiff and the deceased, the plaintiff's financial resources and needs, and any misconduct on either side. The court also had to consider whether the first defendant's conduct, which involved publishing vilifying Facebook posts about the plaintiff, warranted professional sanction as a legal practitioner.

In reaching its decision, the court found that the plaintiff was entitled to a family provision order from the deceased's estate. The court held that the arrangement for dividing the estate was unfair to the plaintiff, as she would not benefit from it. The court also found that the plaintiff had not maltreated the deceased or stolen from him, and that the children had maltreated the plaintiff. The court further held that the first defendant's conduct was capable of warranting professional sanction, but ultimately decided not to impose any sanction, as the first defendant had already been subject to disciplinary proceedings.

The court made an order for the deceased's estate to provide the plaintiff with a sum of money to meet her reasonable financial needs and expectations. The court also ordered that the first defendant's conduct be recorded, and that he be reminded of his professional obligations as a legal practitioner.

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

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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