JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2018
DATE OF JUDGMENT:	13 June 2018
CASE MAY BE CITED AS:	Khouri v Khoury
MEDIUM NEUTRAL CITATION:	[2018] VSC 305 First revision: 13 June 2018

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PRACTICE AND PROCEDURE – Application for summary judgment on the basis that application for revocation of probate has no real prospect of success – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 – Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 – Re Demediuk [2016] VSC 587 – Civil Procedure Act 2010 (Vic), ss 62, 63(1), 64 – Supreme Court (General Civil Procedure) Rules 2015, r 23.02(2).

PROBATE – Application for revocation of probate granted in common form – Executor applies for summary judgment – Whether applicant for revocation has no real prospect of success – Where grounds for revocation of probate unsupported by admissible evidence – Summary dismissal granted – In the Will of Lamont (1881) 7 VLR (IP & M) 86; Re Egan (deceased) [1963] VR 318; Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786; Re Anderson [2017] VSC 338; Gardiner v Hughes [2017] VSCA 167.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Sparke QC	Dellios West & Co
For the Applicant	Mr G Doran, solicitor	Nevett Ford

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background facts................................................................................................................................ 1

The hearing......................................................................................................................................... 6

Applicable Law................................................................................................................................... 7

Revocation of probate.................................................................................................................. 7
Summary Judgment test............................................................................................................. 10

Submissions and Consideration................................................................................................... 12

Lack of testamentary capacity................................................................................................... 13
Lack of knowledge and approval............................................................................................. 14

Conclusion......................................................................................................................................... 16

HIS HONOUR:

Introduction

The plaintiff (‘Executor’) applies pursuant to s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’) to dismiss the application made by Suzanne Khoury (‘Suzanne’) to revoke the grant of probate made by the Court on 7 August 2017.

Background facts

On 7 August 2017 probate of the Will of Marina El Khoury (‘deceased’) was granted to the Executor, who was the executor named in the Will of the deceased made on 17 March 2017.

The grant of probate was made on the application in common form supported by the affidavit of the Executor[1] and one of the subscribing witnesses to the Will, Charbel Jarrouje (‘Solicitor’).[2]
[1]Affidavit of Elias Khouri sworn 28 July 2017.
[2]Sworn 28 July 2017.

The Will of the deceased was made on 17 March 2017 and appoints the plaintiff as executor and trustee. The Will leaves the whole of her real and personal estate to her trustee on trust to pay the balance remaining after the payment of the deceased’s just debts and funeral and testamentary expenses to 6 of her brothers (8.5% each) one sister (14%) and three nieces (two receive 6.25% and one 8.5%), with the balance (14%) to…

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 Khouri v Khoury

Details

AGLC: Khouri v Khoury [2018] VSC 305
Case: [2018] VSC 305
Decision Date: 13 June 2018

CaseChat Overview and Summary

The case of Khouri v Khoury involved an application for summary judgment by the executor of a will against a party seeking revocation of the probate. The matter was heard in the Supreme Court of Victoria. The applicant for revocation, who was not a party to the will, argued that the executor had misapplied funds and lacked testamentary capacity at the time of the will's creation. The executor sought summary dismissal of the revocation application, arguing that the applicant had no real prospect of success.

The court was required to determine whether the applicant for revocation had a real prospect of success, considering the evidence provided and the relevant legal principles. The court considered the statutory framework and case law, including Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, Mandie v Memart Nominees Pty Ltd, and Re Demediuk, which outline the criteria for granting summary judgment. The court also considered the rules of court, particularly the Civil Procedure Act 2010 and the Supreme Court (General Civil Procedure) Rules 2015.

After examining the evidence and applicable law, the court found that the applicant's grounds for revocation were not supported by admissible evidence and did not establish a real prospect of success. The court noted that the applicant had failed to provide any evidence to substantiate the claims of misapplication of funds and lack of testamentary capacity. The court concluded that the applicant had not demonstrated a real prospect of success and granted the executor's application for summary judgment, dismissing the revocation application. The court ordered that the applicant pay the executor's costs of the application.

Orders