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Salloum v Assouni

Salloum v Assouni

Case [2013] VSC 591 1 November 2013

Family Provision and Maintenance

Administration and Probate

Adequate Provision

Testator’s Wishes

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4071 of 2012

NOUHAD SALLOUM	Plaintiff
v
BESHARA ASSOUNI (who is sued as the Executor of the Will and Estate of ANTONIOUS ASSOUNI, deceased)	First Defendant
and
BERNADETTE ASSOUNI (who is sued as the Executor of the Will and Estate of ANTONIOUS ASSOUNI, deceased)	Second Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2013, 1 October 2013
DATE OF JUDGMENT:	1 November 2013
CASE MAY BE CITED AS:	Salloum v Assouni
MEDIUM NEUTRAL CITATION:	[2013] VSC 591	Second Revision 13 November 2013

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SUCCESSION LAW – ADMINISTRATION AND PROBATE – FAMILY PROVISION AND MAINTENANCE – Application by adult daughter of the deceased – Where the estate is small – Where the deceased has a large number of children – Where two children received the large proportion of the estate – Where weight should be given to the testator’s wishes – Whether the deceased made adequate provision for the proper maintenance of the plaintiff – Whether further provision should be made – Extent of provision that should be made – Application granted – Administration and Probate Act 1958 s 91

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Cook	De Marco Lawyers
For the Defendant	Mr R B Phillips	Defteros Lawyers

HER HONOUR:

Introduction

The plaintiff, Mrs Nouhad Salloum, seeks provision for her maintenance and support from the estate of her late father, Antonious Assouni (‘the deceased’) pursuant to s 91 of the Administration and Probate Act 1958 (‘the Act’).

The deceased died on 18 April 2011, leaving a will dated 27 July 2005 (‘the will’). Probate of the will was granted to the defendants, a son and daughter of the deceased, on 25 June 2012.

The deceased was survived by nine of his ten children. His wife, Hoyret, pre-deceased him, having died on 17 August 2002. The ten children were born between the years 1955 and 1973. His son, Hannah Assouni (‘ John’) died on 13 January 2007. His now surviving children’s ages range from 41 to 58 years.

In making his will, the deceased faced a heavy burden, and the decision that faces this Court is no less difficult. One is minded to repeat the opening words of Stein J, in very different circumstances, in Kosic v Queanbeyan City Council:

This is a most unfortunate case because it would require the wisdom of Solomon to solve it in a fashion acceptable to all the participants. … I am not sure that Solomon's way of dealing with issues actually kept everybody terribly happy. However, it seems to me that whatever the Court concludes, it will be impossible to remedy the situation to the satisfaction of all parties.[1]
[1](Unreported, Land and Environment Court of New South Wales, 26 November 1993) [1]. See also 1 Kings 3:16–28.

The Will

By his will, the deceased gave the following:

(a)his double barrel Browning rifle and his gold ring with diamond to the…

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 Salloum v Assouni

Details

AGLC: Salloum v Assouni [2013] VSC 591
Case: [2013] VSC 591
Decision Date: 1 November 2013

CaseChat Overview and Summary

In the matter of Salloum v Assouni, the court heard an application by an adult daughter, Salloum, against the executor of her deceased father’s estate, Assouni. The central issue was whether the deceased had made adequate provision for Salloum's proper maintenance and whether further provision should be made from the estate. The deceased had a relatively modest estate, which was predominantly distributed to two other children. The court had to balance the deceased's wishes, as expressed in the will, with the statutory provisions under the Administration and Probate Act 1958.

The primary legal issue revolved around interpreting the provisions of the Administration and Probate Act 1958, specifically section 91, which allows the court to make orders for the maintenance of dependants. The court had to determine if Salloum was a dependant in need of maintenance and if the deceased had indeed made adequate provision for her. Additionally, the court needed to consider the competing interests of other children who received significant portions of the estate and how these factors impacted the application.

In delivering the judgment, the court noted the statutory requirement to consider the deceased's wishes as expressed in the will. Despite the deceased's attempts to distribute the estate among several children, the court found that Salloum had not been adequately provided for. The court emphasised the importance of balancing the testator's intentions with the statutory mandate to ensure proper maintenance of dependants. The court concluded that further provision should be made from the estate to meet Salloum’s needs.

The court granted the application, directing that a portion of the estate be set aside for Salloum’s maintenance. This decision underscores the court's role in ensuring that the statutory provisions for dependants are upheld, even where the deceased's will may not fully achieve this outcome.

Orders