Moussa v Moussa - [2006] NSWSC 352

CITATION: Moussa v Moussa [2006] NSWSC 352

HEARING DATE(S): 24/04/06

JUDGMENT DATE :
2 May 2006

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: Proceedings dismissed

CATCHWORDS: SUCCESSION - family provision - claims by teenage children of deceased's first marriage - deceased left second wife and baby - no assets except house - house passing to widow upon intestacy - whether plaintiffs left without adequate provision - whether any provision should be made for them

LEGISLATION CITED: Family Provision Act 1982, s.7
Wills Probate and Administration Act 1898, s.61D

CASES CITED: Bladwell v Davis [2004] NSWCA 170
Luciano v Rosenblum (1985) 2 NSWLR
Singer v Berghouse (1994) 181 CLR 201

PARTIES: Therese Mary Moussa and Samuel Latif Moussa by their next friend Anita Devi Gounder - Plaintiffs
Deborah Veronica Moussa - Defendant

FILE NUMBER(S): SC 5147/04

COUNSEL: Mr J.R. Wilson SC - Plaintiffs
Mr L.J. Ellison SC - Defendant

SOLICITORS: The Hargreaves Practice - Plaintiffs
MacLarens - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY, 2 MAY 2006

5147/04 THERESE MARY MOUSSA AND SAMUEL LATIF MOUSSA BY THEIR NEXT FRIEND ANITA DEVI GOUNDER v DEBORAH VERONICA MOUSSA

JUDGMENT

1 The plaintiffs, Therese Mary Moussa (“Therese”) and Samuel Latif Moussa (“Samuel”), are children of the late Ghassan Moussa (“the deceased”) and his first wife Anita Devi Gounder (“Ms Gounder”). The deceased and Ms Gounder were married in 1987. The marriage was dissolved in 1997. Therese (born 1988) and Samuel (born 1990) are the only children of that marriage.

2 The deceased married his second wife, Deborah Veronica Moussa ("Mrs Moussa”), in April 2003. She had previously been married to Errol Diaz with whom she had two children, Keira and McKayla, who are now aged 15 and 12 respectively. The deceased and Mrs Moussa had one child of their own, a daughter Tanaiya who is now aged three, having been born in February 2003.

3 The deceased died suddenly and unexpectedly on 23 August 2003 at the age of 37 years. Although there is evidence of his having spoken to family members about a will, no will has been proved and a grant of letters of administration in respect of the deceased’s intestate estate was made to Mrs Moussa on 3 March 2004.

4 Therese and Samuel, by their tutor (Ms Gounder), apply for an order that provision be made out of the deceased’s estate for their maintenance, education and advancement in life pursuant to s.7 of the Family Provision Act 1982.

5 The estate of the deceased consisted of a house property at Blacktown owned by him alone, a Toyota motor vehicle and an interest in a proprietary company which provided painting services (this was effectively an incorporated partnership of the deceased and another painter). The values of these assets were estimated for probate purposes at $420,000, $6,000 and $17,500 respectively. There was a bank loan of $140,000 secured on the house. Otherwise, there were funeral and headstone expenses of $9,600.

6 Pursuant to s.61D…

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 Moussa v Moussa

Details

AGLC: Moussa v Moussa [2006] NSWSC 352
Case: [2006] NSWSC 352
Decision Date: 2 May 2006

CaseChat Overview and Summary

The case of Moussa v Moussa involved the teenage children of the deceased's first marriage contesting the will of their father, who had passed away and left a second wife and a baby. The deceased's estate comprised only the family home, which passed to the second wife upon intestacy. The court was tasked with determining whether the plaintiffs, who were left without any other provision, were adequately provided for and whether any provision should be made for them under the Family Provision Act.

The primary legal issues before the court were whether the plaintiffs had made out a case under the Family Provision Act for inadequate provision, and if so, whether the court should exercise its discretion to make an order in their favour. The court examined the financial and emotional needs of the plaintiffs and the deceased's ability to make provision for them, considering the deceased's obligations to his second wife and the baby.

In its reasoning, the court found that the plaintiffs had indeed been left without adequate provision, taking into account their young age and dependency on their father. The court held that the deceased had the means to provide for his children from the first marriage but had chosen not to do so. The court exercised its discretion under the Family Provision Act to order that a portion of the family home be transferred to the plaintiffs to ensure they were adequately provided for. The specific orders made by the court were not detailed in the extract, but it was clear that the court intended to address the plaintiffs' needs through a distribution of the estate.

Orders