Moussi v Moussi
[2009] VSC 479
•26 OCTOBER 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. S CI 2009 00068 P
IN THE MATTER of the Will of ANTOINE NEHMETALLAH MOUSSI, deceased
| CHAD MOUSSI, JAMES HENRY NOTT and KEVIN EDWARD ROACHE | Plaintiffs |
| v | |
| ELIE MOUSSI | Defendant |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 OCTOBER 2009 | |
DATE OF JUDGMENT: | 26 OCTOBER 2009 | |
CASE MAY BE CITED AS: | MOUSSI & ANOR v MOUSSI | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 479 | |
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WILLS – Application for Will made in Melbourne to be admitted to probate – Similar application for subsequent Will made in Lebanon – Whether testator had testamentary capacity at the time of later Will – Settlement of dispute between contenders for probate – Contract - Whether defendant bound by terms of settlement agreed between the legal practitioners notwithstanding that defendant now refusing to execute – Effect of failure by defendant to obey an order that he file evidence of testamentary capacity – Melbourne Will admitted to probate.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms S. Marks | Coulter Roache |
| For the Defendant | Mr K. Boden | Starnet Legal |
HIS HONOUR:
Antoine Moussi died in Lebanon, the country of his birth, on 6 April 2009. Then 75 years old, he was on an extended visit after a successful business career in Australia. He left a will made in Lebanon on 16 March 2009. But he had previously made a will - at Melbourne on 10 January 2008. Three of the four executors named in that will (Chadi Moussi, James Nott and Kevin Roache) seek an order of this Court that it be admitted to probate, with leave being reserved to the fourth executor (Gaby Badr) to come in at any time and join in its proof. They challenge the Lebanese will on the grounds that the deceased did not then have testamentary capacity. In the meantime, one of the two executors named in the Lebanese will (Elie Moussi) seeks to propound that will. The other executor named in it (John Abi-Ghosn) has renounced probate.
Elie Moussi is the brother of the deceased. Chadi Moussi, Gaby Badr and John Abi-Ghosn are his nephews. Mr Nott was his accountant, and Mr Roache his solicitor.
The contending parties sought by negotiation to settle their differences. I think they succeeded. Mr Elie Moussi does not. I must explain why I think that he is wrong.
A letter of offer dated 28 August 2009, was sent by Starnet Legal, Elie Moussi’s solicitors, to Coulter Roache, who act for the executors named in the Melbourne will. It provoked a response, dated 3 September, from Coulter Roache. In that letter, Coulter Roache suggested a settlement in which, among other things, Elie Moussi would consent to an order that this Court order probate of that will. Within 21 days after the Melbourne will was admitted to probate, Elie Moussi would receive the sum of $800,000 in full settlement of all his relevant entitlements, including those with their source in that will. There were certain conditions precedent, including “Elie [Moussi] being party to a settlement deed to give effect to” the proposals put in the 3 September letter.
That letter gave rise, on 8 September, to a telephone conversation between the solicitors. In the course of this, as a letter dated that day from Coulter Roache to Starnet Legal affirms, the offer of $800,000 was increased to $815,000. The following day (9 September) Starnet Legal wrote to Coulter Roache. The offer of $815,000 was accepted “in the terms outlined in your letters of 3 September and 8 September 2009”.
Encouraged by this, Coulter Roache prepared a deed of settlement, which was forwarded to Starnet Legal on 23 September. It was returned on 2 October under cover of correspondence which noted some proposed amendments and continued:
I have made no changes to the substance of the deed and advise that my costs … shall be $5,000.00.
All the amendments proposed by Starnet Legal were accepted. The request for costs was not. It was resisted on the basis that neither the deed nor any of the settlement proposals provided for them. The response from Starnet Legal was that this was irrelevant, since “[t]hese costs are additional and are not contemplated by your correspondence”.
The only remaining difference, therefore, is not whether there is an agreement. It is restricted to whether that agreement covers the remaining claim for costs. Accordingly, there was and is in place an agreement evidenced by a settlement deed to which Elie Moussi was and is a party, albeit that the document has not been executed. It is, however, one the execution of which equity would, and shall if necessary, decree. That agreement provides, among other things, that Mr Moussi will “irrevocably and unconditionally consent and agree to an order being made for the grant of probate of the Melbourne will in accordance with the originating motion for grant of probate filed by the executors … on 12 May 2009”. In fact, the originating motion was filed on 14 May. With that slight amendment, I shall so order.
There was a suggestion, made during the course of the hearing before me but not supported by evidence, that steps have been taken in Lebanon (by persons other than the executors of the Melbourne will) to prevent dealings with certain Lebanese property of the deceased. They are irrelevant, except that they may explain why Elie Moussi is reluctant to make good his promise to consent to a grant of probate of the Melbourne will.
By the letter from Coulter Roache dated 3 September 2009, it was said that the proposed settlement was conditional upon John (referred to in the letter as “Jean”) Abi-Ghosn and Gaby Badr becoming parties to and being bound by the foreshadowed settlement deed. I am satisfied that this condition was inserted solely for the benefit of the executors. The fact that it has not been fulfilled may therefore be waived by them - as it has.
There is another argument relied upon by the executors of the Melbourne will. It is an alternative to the submissions about the status of the unexecuted deed. It is that, on 16 July, Byrne J ordered that by 3 August 2009, Elie Moussi file evidence of the testamentary capacity of the deceased. Mr Moussi has disobeyed that order. The required evidence has even now not been filed. The executors of the Melbourne will submit that, on that basis alone, they are now entitled to an order for probate of that will because Mr Moussi has by his disobedience disqualified himself from applying for probate of the Lebanese will.
Mr Moussi submits that he was distracted by the settlement negotiations from attending to the obligations imposed upon him by Byrne J. The answer of the executors is that, even were that an excuse (which, they submit, it is not) those negotiations came to an end on 2 October. Yet, even now, Mr Moussi has not sought to rectify the fault.
Orders of the court must be obeyed. It is no excuse that settlement negotiations are under way, unless the parties are entitled to agree, and do agree, that the effect of the orders may be suspended in the meantime. No such agreement was made in this case. Nevertheless, Mr Moussi’s disobedience may not have been such as to disqualify him entirely from opposing a grant being made in respect of the Melbourne will. I say “may” because I have come to no final conclusion on this point. Given my decision about the binding nature of the deed, there is no need for me to do so.
For the reasons given, I order that the will of the deceased dated 10 January 2008 be admitted to probate.
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