Khouri v Khoury
[2018] VSC 305
•13 June 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2017 12187
IN THE MATTER of the Will of MARINA EL KHOURY, deceased
| ELIAS KHOURI | Plaintiff |
| v | |
| SUZANNE KHOURY | Applicant |
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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 the plaintiff (another brother). After the signature and before the attesting witnesses signatures the following appears:
SIGNED by the Testatrix the said MARINA EL KHOURY not being able to read or speak the English language the Will was read over to her translated into the Lebanese language by CHARBEL JARROUJE who then informed us that the Testatrix had said that she approved of the Will and it was then signed by the Testatrix in our joint presence and attested by us in the presence of her and each other.
Clause 5 of the Will provides that:
I DECLARE my sister SUZANNE KHOURY shall not be entitled to any benefit from my estate as she has excommunicated herself from me.
On 5 January 2018, Suzanne, a sister of the deceased, filed a summons in accordance with r 11.02 of the Supreme Court (Administration and Probate) Rules 2014 (‘Probate Rules’) seeking revocation of the probate. That application was supported by an affidavit of Suzanne made in the United States of America on 22 December 2017 (‘Suzanne’s affidavit’).
The substance of Suzanne’s affidavit was as follows:
(a) the deceased is her sister and the Executor their brother;
(b) the deceased died on 29 April 2017 after a battle with cancer;
(c) the deceased was unable to read English;
(d) the deceased was gravely ill as at 17 March 2017 and the Will was executed while she was in hospital;
(e) although the deceased and Suzanne had not lived in the same country for many years, she had told Suzanne that she intended to leave her Estate to all her siblings;
(f) the Executor is the only sibling of the deceased who lived in Australia and Suzanne believes she became very reliant upon him;
(g) Suzanne did not know about the content of the Will until told by her brother Jacob on or about 20 November 2017. At this time she discovered she was not a beneficiary under the Will;
(h) the Executor had been attempting to keep Suzanne uninformed about not being a beneficiary in the Will until after distribution was to take place.
In addition to these matters there was a scandalous allegation, expressed as a belief, concerning hearsay emanating from the deceased unsupported by any admissible evidence.[3] It is inappropriate to repeat the allegation in a judgment of the Court and it was inappropriate for a legal practitioner acting responsibly for Suzanne to allow such an allegation to be included in an affidavit filed in this Court.
[3]Suzanne’s affidavit [9].
Understandably, objection was taken to a number of aspects of this affidavit, particularly the statements of conclusion made in sub-paragraphs (h) and the scandalous matter to which I have referred. The objections were well made. There is no basis disclosed for the assertions made in these two paragraphs and the second one should not have been made, as I have said. In addition, it was submitted that the evidence that:
(a) the deceased was gravely ill at the time she signed the Will;
(b) she became very reliant upon the plaintiff;
is unfounded speculation or opinion for which there was no basis. I agree.
By affidavit of the Solicitor sworn 23 February 2018, informal application was made for Suzanne’s application to be summarily dismissed. It was put in the affidavit that there was no foundation for the application. A general response to the application was made in the following terms:
(a) the Solicitor is a fluent speaker of the Lebanese dialect of the Arabic language (‘Lebanese’). The deceased also spoke Lebanese and gave instructions to him in that language;
(b) the deceased attended the offices of the Solicitor for him to take her instructions personally. The Solicitor formed the view that she had capacity; he was familiar with the deceased and had no doubt about her ability to express herself and to give instructions;
(c) the instructions were taken more than two months before the deceased died and the Will was executed about six weeks before she died. The Executor was present but took no part in giving instructions;
(d) the Solicitor drafted the Will based on instructions. At the time of execution he read it to her accurately and completely in Lebanese. The deceased was in hospital at the time. The Solicitor formed the view that she continued to have capacity and appeared to understand the document as he read it to her;
(e) on 20 January 2018, the Solicitor received a sworn declaration from one of the deceased’s siblings, Mr Samir Khoury, who was one of the beneficiaries named in the Will. In that declaration Mr Samir Khoury gives evidence of the deceased’s wish not to include Suzanne in her Will.
On 2 March 2018, McMillan J ordered Suzanne to file and serve grounds of revocation of the Will. These were filed on 14 March 2018 (‘the grounds’). Two grounds are relied upon:
(a) that the deceased lacked testamentary capacity;
(b) that the deceased lacked knowledge of and did not approve the contents of the Will.
Particulars of the grounds are given at some length.
By summons filed on 13 April 2018 the Executor applied formally to dismiss Suzanne’s application pursuant to s 63 of the CPA or r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’). That summons was supported by another affidavit of the Solicitor sworn on 13 April 2018. In that affidavit he deposes that:
(a) the Executor relies on the presumption of due execution which attends the making of a Will which is regular on its face;
(b) the grounds in support of Suzanne’s application do not set out a proper foundation for the application as it is unsupported by any evidence relevant either to the testators cognition nor as to her ability to know and approve the content of her Will;
(c) the deceased attended his office on Monday, 6 March 2017 having scheduled an appointment beforehand. She was accompanied by the Executor who did not participate in giving instructions. The Solicitor explained to the deceased that she needed to appoint an Executor and, in general terms, the role of an Executor. The deceased’s instructions were that she wanted to appoint her brother Elias as Executor. The Solicitor suggested that a substitute executor ought to be appointed in the event that Elias could not act in that capacity. The deceased instructed that she wanted her cousin Mariam Fares to be appointed as substitute executor;
(d) the Will provides for all of the deceased’s siblings other than Suzanne to receive a percentage of the Estate. That came about because the deceased gave instructions as to the gifts she wanted to make in dollar terms. After the deceased disclosed what assets she had, the Solicitor advised her that she should gift a percentage of her Estate to each of the beneficiaries rather than a dollar amount. The Solicitor worked out the percentages based upon the dollar amount that the deceased indicated that she wished to leave to her various beneficiaries and the estimated size of the Estate at that time;
(e) the deceased advised she did not want to leave anything to Suzanne as she had had no contact with her;
(f) on each occasion the Solicitor met with the deceased they spoke in Lebanese. When the Solicitor met the deceased to execute the Will he went through the Will provisions with her in that language and the deceased said it was prepared in accordance with her instructions;
(g) at the time of taking instructions the Solicitor was aware that the deceased had cancer. He was able to speak with her in a way in which she told him what she wanted and they discussed the calculation of the percentages in a rational way. The Solicitor did not observe anything that affected her ability to provide clear instructions relating to the composition of her Estate and how it was to be distributed following her death. She did not show that she was in great pain or that her health or medication had any impact on her cognition.
On 27 April 2018, McMillan J ordered the parties to file and serve any written submissions on which they intended to rely in the application made by the Executor to dismiss Suzanne’s application for revocation of the grant of probate. By the same order the matter was referred to me pursuant to r 77.05 of the Rules for hearing and determination on 6 June 2018.[4]
[4]The reference was not strictly necessary as applications to dismiss under the CPA are within the jurisdiction of an Associate Judge: r 77.01(2)(a)(iiia) of the Rules.
On 8 May 2018, the Executor made an affidavit of documents. The documents disclosed included a prior Will made 17 August 2000, notes of the Solicitor made on 6 March 2017 of the instructions given by the deceased as to the drawing of the Will, a letter dated 7 March 2017 from the Solicitor to the deceased enclosing a draft of the Will and notes of an attendance on 17 March 2017 at Hospital together with the other subscribing witness, Lorraine Wassouf, at which time the Will was signed by the deceased.
The hearing
The application to dismiss Suzanne’s application came on for hearing on 6 June 2018 in accordance with orders of McMillan J. Prior to that time, in accordance with the orders of McMillan J, the Executor had filed submissions. No submissions, and no further affidavit material, had been filed by or on behalf of Suzanne. The solicitor for Suzanne had clear notice from the affidavits in support of the application, and from the submissions filed on 30 May 2018, that there was a direct challenge to the grounds of the application for revocation and the absence of evidence to support those grounds.[5] Notwithstanding that notice, Suzanne has advanced no satisfactory evidentiary support for the grounds of revocation.
[5]Affidavit of Charbel Jarrouje made 9 April 2018 [4].
The solicitor for Suzanne applied for an adjournment to enable evidence to be advanced. He submitted that one particular of the second ground relied upon showed that evidence was obtainable locally and that an adjournment should be granted to enable that evidence to be advanced. He went further, and submitted that if the evidence was not filed in support of the particular ground within the time to be allowed, a self-executing order for dismissal of the application for revocation should be made. He informed the Court that he could not disclose the reason why the orders of McMillan J had not been complied with and why no affidavit evidence in support of the grounds had been filed. To do so might reveal communications subject to client legal privilege. He submitted that the Solicitor’s notes of attendance on the deceased, revealed in the Executor’s affidavit of documents had only been provided recently (with the affidavit of the Executor made on 8 May 2018)[6] and attempted to give evidence from the Bar table as to prior requests, but stopped after objection was made. No doubt the point was that the notes confirmed the evidence of the Solicitor as to the taking of instructions, the calculation of the percentages of the Estate bequeathed to the beneficiaries and the capacity of the deceased to give instructions and sign the Will. This undermined the application for revocation and left little or nothing for argument in support of it.
[6]Accompanying the affidavit are the documents discovered.
Counsel for the Executor resisted the adjournment. I determined that it was not an appropriate case for an adjournment. No reasons were disclosed for the failure of Suzanne to file either submissions or affidavit evidence to support the grounds for revocation. Moreover, there was real prejudice to the Estate of the deceased arising from the fact that Suzanne resided in the United States of America and it was very likely that costs could not be recovered from her. The solicitor for Suzanne was not in a position to undertake to pay those costs but did indicate that if ordered to pay costs personally he would do so. Given the absence of reasons for the failure of Suzanne to file supporting evidence or submissions to support the prospect of success of the revocation application, the Court has no grounds to order the solicitor to pay any costs thrown away by reason of the adjournment.
Applicable Law
Revocation of probate
Probate as ordinarily granted in this Court in common form is not final, as is the case of probate granted in solemn form, per testes.[7] The critical distinction between the two forms is that a grant in common form is a non-contentious grant, and a grant in solemn form is usually a contentious grant obtained through testimony (which may be contested evidence) of the minimum requirements for validity of a will (including, at least, proof of due execution).[8]
[7]Re Pyke (1861) 1 W & W (IE & M) 20; In the Will of Lamont (1881) 7 VLR (IP & M) 86; Re Egan (deceased) [1963] VR 318, 320.
[8]Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [68]-[71]; referring to Tsagouris v Bellairs [2010] SASC 147; 5 ASTLR 403 [35]-[36]; Wheatley v Edgar [2003] WASC 118; 4 ASTLR 1 [24] and [26]; Romascu v Manolache [2011] NSWSC 1362 [180]-[181].
The power of the Court in its probate jurisdiction to revoke a grant is exercised at the discretion of the Court, not as a matter of right, having regard to all relevant circumstances of the particular case.[9] The revocation of a grant of representation is equivalent to setting aside a court order.[10] Molesworth J expressed the position in In the Will of Lamont as ‘..the next of kin cannot have an inquiry as a matter of right. The person having obtained probate has a place to hold until displaced’.[11] In this way, there is a procedural burden on the applicant for revocation to advance facts that warrant the revocation sought.
[9]In the Will of Lamont (1881) 7 VLR (IP & M) 86; In re Goode (1890) 11 NSWR (Eq) 281; Re Gillard [1949] VLR 378; Re Egan (deceased) [1963] VR 318; Neilson v The Public Trustee; the Estate of EL Neilson (unrep, 8 May 1992) BC 9201888 at 14-15 (quoted in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [293]); Re Gardiner [2016] VSC 541; Re Anderson [2017] VSC 338 [14].
[10]In the Will of Lamont (1881) 7 VLR (IP & M) 86, 93, 98 (Molesworth J). See also Estate Cockell; Cole v Paisley [2016] NSWSC 349 [53] (Lindsay J).
[11](1881) 7 VLR (IP & M) 86, 99.
The old procedure, by obtaining an order nisi and seeking to make the order absolute, involved establishing by evidence that an inquiry into the circumstances attending the execution of the Will was warranted. If such an inquiry was warranted, the executor may be put to proof of the Will in solemn form per testes.[12]
[12]In the Will of Lamont (1881) 7 VLR (IP & M) 86.
An applicant seeking to revoke a grant must show standing to make such an application, a reasonable explanation for the delay in bringing the application to revoke the grant and a prima facie case to challenge the grant of probate or letters of administration.[13]
[13]See, eg, Offley v Best (1667) 83 ER 361; In re Gillard [1949] VLR 378, 381 (Barry J); Edwards v Boyd (1958) 75 WN (NSW) 525; Re Egan [1963] VR 318, 320 (Herring CJ); Van Wyk v Albon [2011] VSC 120; Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 [285]–[288], [309] (Lindsay J), citing Swalwell v Swalwell (Unreported, Supreme Court of New South Wales, Needham J, 15 July 1988); Cole v Paisley [2016] NSWSC 349 [53] (Lindsay J); Re Anderson [2017] VSC 338 [15].
In order to establish a prima facie case, an applicant must provide a sufficient factual basis for the grounds of objection.[14] This is done through the provision of particulars with the grounds of objection. The function of particulars is to provide an opposing side with an understanding of an applicant’s case and inform the opposing party of the case it has to meet. They limit the issues to be tried and define the questions for trial with precision and avoid surprise at the trial.
[14]Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [242] (Lindsay J), citing Moran v Place [1896] P 214, 216–7 (Kay RJ); Montalto v Sala [2016] VSCA 240 [29]–[30] (Warren CJ, Whelan and Santamaria JJA).
Where, however, the plaintiff executor seeks to summarily dismiss the application for revocation and does so supported by evidence on affidavit of the kind filed in this application, it is incumbent on the applicant to establish by evidence, usually by affidavit evidence or reference to undisputed documents discovered by the estate of the deceased, a factual basis for the grounds, and particulars, advanced to support the application for revocation. This follows from the nature of the procedure under the CPA and the rules of Court made to regulate applications under the CPA.[15] There is no doubt, and it was not contended to the contrary, that the CPA and the summary judgment rules applicable, apply to probate proceedings.[16] In Gardiner v Hughes McLeish JA observe:[17]
Probate courts have often required a party challenging a grant of probate to show a prima facie case at an early stage of proceedings, in recognition of the significant implications of upsetting a grant.[18] However, such a requirement does not apply automatically and the stage, if any, in a proceeding dealing with an application for revocation at which the applicant may be required to establish a prima facie case for revocation, or a real prospect of success, is governed by rules of court and such directions as the court may make consistent with the CPA.[19]
[15]Rule 22.04 and 22.05 of the Rules, made applicable by r 1.05 of the Probate Rules.
[16]Van Wyk v Albon [2011] VSC 120; Re Demediuk [2016] VSC 587; Gardiner v Hughes [2017] VSCA 167.
[17]Gardiner v Hughes [2017] VSCA 167 [93] (Tate and Kyrou JJA agreeing).
[18]Re Seymour [1934] VLR 136; In Re Devoy: Fitzgerald v Fitzgerald [1943] St R Qd 137; In Re Gillard [1949] VLR 378; Re Egan (deceased) [1963] VR 318; Poulos v Pellicer In the Estate of Culina [2004] NSWSC 504; Tobin v Ezekiel (2012) 83 NSWLR 757; Estate Cockell; Cole v Paisley [2016] NSWSC 349.
[19]Re Seymour [1934] VLR 136; Re Egan (deceased) [1963] VR 318; Tobin v Ezekiel (2012) 83 NSWLR 757; Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786.
The application in this case is an example of the application of the CPA and the Rules to a probate proceeding in which application for revocation is made and challenged by application for summary judgment under the CPA, but is not adequately supported by evidence or by necessary inferences from the facts otherwise established by the plaintiff.
Summary Judgment test
Part 4.4 of the CPA sets out the test for summary judgment: a court may give summary judgment if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, has no real prospect of success (s 63).
This liberalises the rules governing summary judgment in Victoria, so that it is easier to dispose of unmeritorious claims or defences summarily. The Court of Appeal has stated that the test:
[S]hould be construed as one of whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success; that the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.[20]
[20]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 [29] (Warren CJ, Nettle JA (Neave JA agreeing)).
The test must be applied according to its own terms and not according to considerations of whether the proceeding is ‘hopeless’ or ‘bound to fail’. To adopt ‘an unduly constrained, historical approach to the construction of s 63 would ‘subvert the purpose of the provision’.[21]
[21]Ibid [25] (Warren CJ, Nettle JA (Neave JA agreeing)).
Courts must, however, continue to exercise the power to terminate proceedings summarily with caution. Courts should therefore only exercise the power if it is clear that there is no real question to be tried. This is so irrespective of whether an application for summary judgment is made on the basis that: the pleadings do not disclose a reasonable cause of action, and no amendment could cure this error; or the action is frivolous, vexatious or an abuse of process; or the application for summary judgment is supported by evidence.[22]
[22]Ibid [35] (Warren CJ, Nettle JA (Neave JA agreeing)).
The power to give summary judgment must be exercised in accordance with the overarching purpose of the Act and taking into account the fact that, if granted, a party will be deprived of the chance to pursue its claim or defence.[23]
[23]Ibid [42] (Neave JA).
These principles were confirmed by the Court of Appeal in Mandie v Memart Nominees Pty Ltd[24] where Kyrou, Ferguson and McLeish JJA observed:
According to Lysaght: a prospect which is not ‘real’ is ‘fanciful’; although the ‘no real prospect of success’ test in s 63(1) of the CP Act is more liberal than the common law test of ‘hopeless’ or ‘bound to fail’, there may not be much difference between them in practice; and, properly understood, a real question to be tried is one which realistically might result in the respondent to an application for summary judgment succeeding in the proceeding.[Footnote omitted].
[24][2016] VSCA 4 [45].
If there is no real prospect of success, a court may nevertheless allow a matter to proceed to trial if:
(a)it is not in the interests of justice to summarily dispose of the proceeding (s 64(a)); or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate (s 64(b)).
Whether a proceeding should be allowed to go to a full hearing on the merits must be determined according to the circumstances of each case.[25]
[25]Barber v State of Victoria [2012] VSC 554 [15].
In Re Demediuk[26] McMillan J applied Part 4.4 of the CPA to caveat proceedings that challenged an application for a grant of probate of a will. Although the challenge to the grant of probate was not dismissed summarily, the decision confirms the applicability of the relevant provisions of the CPA to proceedings in the probate jurisdiction of the Court.
[26][2016] VSC 587 [12]–[18].
Submissions and Consideration
There was no issue as to the standing of the applicant raised by the Executor. It appears to be common ground that under the previous will of the deceased Suzanne was a beneficiary, and that if the grant of probate were revoked, or called in, there would be at least a possibility of a grant of representation with the former will annexed, or an intestacy, where in either case Suzanne would be likely to be beneficially entitled.[27]
[27]The deceased’s former Will was not formerly in evidence, but was attached to the Executor’s affidavit of documents. It is dated 17 August 2000 and leaves all the deceased’s real and personal property on trust for all her siblings as tenants in common in equal shares. There were then 11 siblings. With respect to questions of standing see Gardiner v Hughes [2017] VSCA 167.
The only evidence to explain the delay in bringing the application to revoke the grant was in Suzanne’s affidavit. It consists of two elements. First, that Suzanne did not know about the content of the Will until told by her brother Jacob on or about 20 November 2017, some three months after the grant of probate. At this time she discovered she was not a beneficiary under the Will. Second, that the Executor had been attempting to keep Suzanne ‘uninformed’ about not being a beneficiary in the Will until after distribution was to take place. The plaintiff took issue with this second explanation on the basis that it is an unsubstantiated assertion. I agree that it is not admissible as evidence explaining the delay. Otherwise, the Executor did not specifically address the issue of whether or not there was a reasonable explanation for the delay. That is no doubt because nothing ultimately turns on this issue.
The Executor submitted that the basis for revocation is not stated in any affidavit, but in the grounds of objection alone. Those grounds are not supported by any affidavits of Suzanne or any other person and ought not to be taken into account. In any event, even if the grounds of objection were treated as supported by evidence they would not give rise, in the circumstances of this case, to any proper basis for revoking the grant of probate. I will deal with the grounds by considering them on the same basis as the Executor advanced argument.
Lack of testamentary capacity
A number of medical conditions are particularised in the grounds in support of the deceased lacking testamentary capacity. They are almost all matters of physical complaint (a heart condition, breast cancer in remission, diabetes, thrombosis and swollen legs, constant back pain and depression). Only one of those grounds might have any impact upon the testamentary capacity of the deceased, and that is her depression. By itself, however, depression does not necessarily deprive the deceased of testamentary capacity.[28] Given the evidence of the Solicitor, there is no reason to suppose a want of testamentary capacity by reason of any depression suffered by the deceased.
[28]Re Estate of Hodges (Deceased), Shorter v Hodges (1988) 14 NSWLR 698, 708–9.
The particulars of this ground also assert that when, in March 2017, instructions were given for the drawing of the Will, and when it was later signed, the deceased was gravely ill, in severe pain requiring strong medication for its relief and was hospitalised in March 2017. The Executor submits that those facts, if established, are not sufficient to show that her cognition was affected. In any event, it was submitted on behalf of the Executor, that the asserted particulars of the lack of testamentary capacity were directly contradicted by the affidavit evidence of the Solicitor, to which I have referred above. I agree.
In support of this ground it is also asserted that the Will does not accord with her relationships and it is not rational in the light of the deceased’s circumstances at the time. It is said that there are gifts to the Executor’s daughters (two of the nieces of the deceased, Leila Hatem and Therese Saab) of 6.25% of the deceased’s residuary Estate, that the Executor’s other daughter (Catherine Khouri) receives 8.5% and the Executor personally receives 14% of the Estate (a total of 35% of the Estate). By contrast, Mr El Khoury and Ms Semaan, who are alleged to be close to the deceased and whose father (a brother of the deceased) had died, are completely omitted from the Will. It is said that this does not accord with the deceased’s relationship with her various relatives and the penultimate Will in which the deceased treated her siblings equally.[29] It is also said the Will is in contrast with the evidence of Samir Khoury (referred to above at [10(e)]) where he says the deceased said she would leave everything to her brothers and sisters except Suzanne. It is said in the particulars that this suggests that the deceased was unable to weigh the relative strengths of claims on her bounty.
[29]See above at footnote 27.
No evidence is provided in support of these assertions and why the persons named as Mr El Khoury and Ms Semaan ought to have featured in the deceased’s Will. Nor is it said why this shows some lack of testamentary capacity, or other lack of understanding in the making of the Will. I consider that this aspect of the particulars to the grounds, after taking into account the evidence given by the Solicitor, does not lead to a conclusion that Suzanne has any prospect of success in establishing a lack of testamentary capacity.
It is also asserted as a particular of the lack of testamentary capacity that the terms of the Will are complex in that various relatives are left differing proportions of the deceased’s residuary Estate, including fractions such as 6.25%. This is to be contrasted with the simplicity of the penultimate Will. In my view it is not a complex Will in any way, and the evidence of the Solicitor makes clear how the percentages were calculated and that they were in accordance with the instructions of the deceased.
Accordingly, I agree with the submissions of the Executor that Suzanne has no real prospects of success in revoking the grant of probate on this ground.
Lack of knowledge and approval
In her grounds, Suzanne asserts that the deceased did not know and approve the contents of the Will. There is no evidence to support any of the particulars of this ground. Some of the assertions would be inadmissible at trial even if they were in affidavit form (in particular the hearsay assertions in paragraphs 8(k) and 8(l) of the grounds).[30]
[30]Particular 8(k) refers to the statement in clause 5 of the Will (which refers to excluding Suzanne) and the distribution effected by the Will being inconsistent with statements made by the deceased to her nephew and niece between November 2016 and February 2017 that she wanted all her siblings to benefit from her Will. Particular 8(l) refers to animosity between the plaintiff and Suzanne and a statement allegedly made by the plaintiff to one ‘Mr El Khoury’ that he would make sure Suzanne was not ‘in the Will’.
The Executor submitted, that even if the Court were to take into account the grounds without there being any supporting evidence, there is nevertheless nothing in the particulars advanced. For example, it is said that the Will was prepared and signed in suspicious circumstances. The material which has been put into evidence by the Solicitor makes it quite clear there is nothing in the circumstances to raise any suspicion. It is said that the Executor arranged for the deceased to make the Will through the Solicitor who is a cousin of the husband of the alternative executor, Mariam Fares.[31] The alternate executor is not a beneficiary under the Will and even if the particulars were supported by evidence, this relationship does not raise a suspicion, particularly where a Lebanese speaking solicitor was a necessity for the deceased to make a will.
[31]These family relationships are described incorrectly, in any event: Submission of Executor [12bii] fn 10.
The other particulars of this ground are not properly made or supported by evidence. It is unclear whether there is an allegation of undue influence buried in the particulars. If there is, the challenger bears the onus of proving it. Mere suspicion as to what motivated the Will is not enough, but there must be proof of influence being exerted.[32] As Lindsay J explained in Re Kouvakas, Lucas v Konakas,[33] an allegation of undue influence, made in support of a challenge to the validity of a will, requires proof of actual coercive conduct vitiating the free will of the testator, without the benefit of any form of presumption of undue influence arising from relationships such as may be available in the equity jurisdiction. As explained in Re Przychodski,[34] the making of the will must be inconsistent with it having been obtained other than by undue influence.
[32] Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275.
[33][2014] NSWSC 786 [113].
[34][2016] VSC 781 [54].
There has to be a proper foundation to establish that the testator was not truly expressing his or her own mind in their Will.[35] There is none shown by Suzanne and that is particularly so having regard to the two affidavits of the Solicitor which show considerable care was taken to ensure that the deceased’s Will expressed her wishes and not another’s.
[35]In the Will of Wilson (1897) 23 VLR 197; Hall v Hall (1868) LR 1 P & D 481.
Conclusion
In my opinion, for the reasons stated above, Suzanne has no real prospect of success in her application for revocation of the probate granted in this case. The application for summary dismissal of the summons filed on 5 January 2018 will be granted with costs.
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