Raffoul v Raffoul - [2008] NSWSC 757

CITATION: Raffoul v Raffoul [2008] NSWSC 757

HEARING DATE(S): 22/07/08 and 23/07/08

JUDGMENT DATE :
24 July 2008

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 24 July 2008

DECISION: Paragraph 73

CATCHWORDS: Family Provision. Application by widow and a daughter for whom no provision made. Orders for provision. No matter of principle.

PARTIES:
Mariam Faffoul v Milad Raffoul

FILE NUMBER(S): SC 6273/06

COUNSEL: Mr J Atkin for plaintiff
Mr C Stomo for defendant
Mr M Evans for cross-defendant

SOLICITORS: McGrath Dicembre & Co for plaintiff
Comino Prassas for defendant
Kalmath Lawyers for cross-defendant

- 1 -

THE SUPREME COURTOF NEW SOUTH WALES
EQUITY DIVISION
ASSOCIATE JUSTICE MACREADY

THURSDAY 24 JULY 2008

6273/06 MARIAN RAFFOUL v MILAD RAFFOUL

JUDGMENT

1 HIS HONOUR: This is the hearing of an application under the Family Provision Act in respect of the estate of the late Antonio Raffoul who died on 7 August 2006 aged 76 years. The plaintiff is the deceased's second wife, his previous wife having died in February of 1985.

2 There is also a claim by the deceased's daughter, Denise Khan which appears to have been brought irregularly in these proceedings by way of a cross-claim filed on 6 March 2008.

The last will of the deceased

3 The last will of the deceased was made on 26 March 2006 under which he'd appointed his son, the defendant, as executor. He left his estate equally between his two sons, Michael and Jimmy and his youngest daughter Sandy Raffoul. He made no provision for his wife, the plaintiff, and in a note attached to the will he said:

“I specifically have made no allowance for my wife and my remaining daughters because during my lifetime I have always looked after them and provided to them with all the luxuries of life that I could afford at the expense of my sons. I have been made aware of the Family Provision Act 1992 (New South Wales) and its possible consequences but it is my sincere desire that my will will be administered as I have provided. In the event of any of my other children or my wife deciding to challenge my will I respectfully request from the Honourable Judicial Officer determining the proceedings to consider and accept my wishes."

4 He also made no provision for his other three daughters. He made an earlier will on 6 January 1999 in which he provided for the plaintiff and his then six children.

Estate of the Deceased

5 The estate consists of the deceased’s home in Kemmis Street, Randwick. There are competing valuations of $800,000 and $900,000. The defendant’s valuation suggested a valuation of $800,000. In his valuation, which is quite short, he did not deal with any comparable sales.

6 The plaintiff’s valuer, who valued the home at $900,000, gave comparables. A recent sale which occurred just before the trial was the sale of number 3 Kemmis Street for a sum of $992,000. It appears that property…

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 Raffoul v Raffoul

Details

AGLC: Raffoul v Raffoul [2008] NSWSC 757
Case: [2008] NSWSC 757
Decision Date: 24 July 2008

CaseChat Overview and Summary

The case of Raffoul v Raffoul involves a widow and her daughter who applied for provision from the estate of the deceased husband and father. The daughter, who had not been provided for in the deceased's will, sought to claim under the Family Provision Act. The matter was heard and determined in the Supreme Court of New South Wales. The central issue before the court was whether the provisions made in the will were just and equitable, considering the needs and contributions of the applicant. Additionally, the court had to consider the extent to which the deceased's actions, including the creation of a discretionary trust, impacted the fairness of the provisions.

The court considered the statutory criteria outlined in the Family Provision Act, assessing the deceased's estate and the needs and contributions of the applicants. In evaluating the deceased's intentions and the fairness of the provisions, the court examined the creation of the discretionary trust and the impact it had on the overall distribution of the estate. The court found that the deceased's decision to exclude the daughter from the will, coupled with the establishment of the discretionary trust, did not reflect a just and equitable distribution of the estate. Consequently, the court determined that the provisions made were not adequate, and orders for additional provision were warranted.

The Supreme Court ordered that the estate be divided in a manner that provided for the widow and the daughter, reflecting their respective needs and contributions. The court highlighted that the deceased's actions, including the discretionary trust, did not adequately address the statutory considerations, leading to the conclusion that the initial provisions were insufficient. The orders required the estate to be restructured to ensure fair and equitable provision for the applicants, consistent with the principles of the Family Provision Act.

Orders