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Rasheed v Rasheed

Rasheed v Rasheed

Case [1999] SASC 88 22 April 1999

Testamentary Capacity

Civil Litigation & Procedure

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RASHEED & ORS v RASHEED & ORS
[1999] SASC 88
Full Court: Millhouse J, Prior and Duggan JJ
1      Millhouse J.     This appeal arises out of unhappy differences in the Rasheed family.
2      The three appellants and the first respondent are children of the testatrix Haseba (or Hasiba) Rasheed who died on 2 December 1976. The other three respondents are the sons of the first respondent and the main beneficiaries, equally, under the grand-mother's will. Haseba Rasheed executed her last will on 19 March 1970. It was not proved until 7 November 1986. The appellants seek to have probate revoked and to share in the estate under intestacy. They took proceedings in the Supreme Court to that end on 23 January 1998. Some months after the proceedings were instituted the appellants found that the testatrix had made three earlier wills, in 1960, 1957 and 1954.
3      The family is Lebanese by race. William Abraham Rasheed, the late husband of Haseba (he was 20 years older than she) came out to Australia in the 1890s. He went back to the Lebanon after the First World War and married Haseba, then a girl of 16 or 17. They returned to Australia. There were four children of the marriage of whom the first respondent is the eldest. During the Depression in the 1930s William Rasheed was bankrupt: his business had failed. The family went to live in the Riverland. They lived in poor circumstances and worked hard. After the Second World War the family came back to Adelaide and set up in a delicatessen on the Glen Osmond Road.
4      The family was closely knit and worked very much as a unit. William Rasheed was in control. The children, when they were old enough to work, gave all their earnings to their father to be pooled for the benefit of the family. The three appellants say their father promised that after his and their mother's death they should share equally. That is contrary to Lebanese custom: the custom is for the male line to inherit.
5      Haseba was devoted to her family. She has been described as a shrewd woman. She could not read or write (although she learned to write her name). She was however numerate and worked effectively in the deli.
6      I have to be careful in what I say about the facts.   Many are disputed by one side or the other. Nevertheless the outline I have given is commonly accepted.
7      Annexed to the summons which initiated these proceedings is a statement of claim. This is the relief claimed:-
"(a)... an order that Probate of the said will of the Testatrix granted by this Honourable Court on the 7th day of November 1986 be revoked;
(b).... a decree pronouncing against the said will dated the 19th day of March 1970;
(c).... an order (in the alternative) that the terms of the said will of the Testatrix be varied to provide that each child should receive one quarter of her…

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 Rasheed v Rasheed

Details

AGLC: Rasheed v Rasheed [1999] SASC 88
Case: [1999] SASC 88
Decision Date: 22 April 1999

CaseChat Overview and Summary

The case of Rasheed v Rasheed involved a dispute within the Rasheed family concerning the validity of a will executed by Haseba Rasheed, who passed away in 1976. The appellants, who are children of Haseba, sought to have the probate of the will revoked and to share in the estate under intestacy. The respondents, who are the sons of the first respondent and the main beneficiaries under the will, opposed the claims. The case reached the South Australian Supreme Court, which was tasked with deciding on the validity of the will and the appellants' claims for relief under the Inheritance (Family Provision) Act.

The legal issues before the court included the validity of the will, the appellants' claims for revocation of probate, and their claims under the Inheritance (Family Provision) Act. The court had to consider whether the appellants had standing to challenge the will, whether the delay in bringing the proceedings was a bar to the claims, and whether the appellants could establish the necessary grounds for revoking the probate or claiming relief under the Act.

The court found that the delay in bringing the proceedings was too long, making it impossible for the respondents to gather sufficient evidence to support the due execution of the will. The court also found that the appellants' decision not to challenge the will immediately after their mother's death, coupled with the significant delay, amounted to an abuse of process. As a result, the court dismissed the claim for revocation of probate. However, the court allowed the appellants to pursue their claims under the Inheritance (Family Provision) Act, subject to the amendment of the statement of claim to seek an extension of time for making the applications under the Act.

The final orders of the court were to dismiss the claim for revocation of probate and to allow the appellants to pursue their claims under the Inheritance (Family Provision) Act, subject to the amendment of the statement of claim. The court emphasized the importance of timely legal action and the principle of freedom of access to the courts, while also recognizing the need to prevent abuse of the court's process.

Orders