Sankari v Abouelhamd

[2021] NSWSC 707

Supreme Court

New South Wales

Medium Neutral Citation:

Sankari v Abouelhamd [2021] NSWSC 707

Hearing dates:

1, 15 June 2021

Date of orders:

15 June 2021

Decision date:

15 June 2021

Jurisdiction:

Equity

Before:

Parker J

Decision:

See [49]

Catchwords:

SUCCESSION – probate and administration – deceased executed two wills – whether evidence sufficient to establish due execution of later will – original of later will not in evidence – due execution of later will established – grant of probate under earlier will revoked – presumption of destruction with intent to revoke – presumption rebutted – grant of probate made under later will

Cases Cited:

Taylor v Waters (Supreme Court (NSW), Powell J, 19 June 1992, unrep)

Tobin v Ezekiel (2012) 83 NSWLR 757

Category:

Principal judgment

Parties:

Zeina Hazem Sankari (Plaintiff)
Islam Elsayed Abouelhamd (Defendant)

Representation:

Counsel:
M Condon SC/A Stevens (Plaintiff)
F Santisi (Defendant)

Solicitors:
Thurlow Fisher Lawyers (Plaintiff)
N.A Lawyers (Defendant)

File Number(s):

2019/309194

Publication restriction:

Nil

Judgment – EX TEMPORE

Revised from transcript; issued 17 June 2021

1. These proceedings concern the testamentary arrangements of the late Elsayed Salam Abouelhamd, who died in August 2018 at the age of 54. The deceased had two families with two different wives. For convenience and without disrespect, I will refer to the family members who come into this judgment by their first names.

2. The deceased was of Egyptian origin. His first wife was Suzan Suleiman. They married in Egypt where they had two sons, Islam and Ahmad, and a daughter, Menna. All of the children of the marriage are now adults.

3. The deceased and Suzan divorced in May 2004. Suzan remained, and remains, in Egypt. It is alleged by her that following the divorce she and the deceased remarried. It is unnecessary for the purposes of this judgment to go into that question.

4. The deceased married Zeina Hazem Sankari in Australia in October 2004. Together they have a daughter, Nancy, and a son, Adam. Both of the children were, at the date of the deceased's death, under the age of eighteen. Nancy was born in January 2005 and is now sixteen. Adam was born in July 2007 and is almost fourteen. The family home was a house at Condell Park in Western Sydney registered in the deceased's name. Zeina, Nancy and Adam continue to live there.

5. During his marriage to Zeina the deceased made regular visits to Egypt where he would stay for several months at a time. At a point not precisely identified in the evidence he was diagnosed with the cancer that ultimately claimed his life. For the last couple of years of his life he appears to have been living in Egypt. That is where he died.

6. The deceased was a businessman. He appears to have left substantial property in Egypt. It seems to be accepted that succession of that property will be determined according to Egyptian law. The deceased also owned property in New South Wales and it is that property which is in issue in these proceedings.

7. The vehicle for the deceased's business operations in Australia was a company called Salam Import Export Pty Limited (“Salam”). The deceased owned 60 per cent of the shares in that company and Islam owned 40 per cent. Following the deceased's death, Islam is now the sole director of the company.

8. The company apparently operated as trustee for a trust known as the Salam Import Export Family Trust. According to Islam, the beneficiaries of that trust are himself and Ahmad. Salam owns a factory building at Milperra. That building is currently leased and apparently generates a substantial rent.

9. The deceased relevantly made two wills, or purported wills, dealing with his property in Australia. The first was dated September 2010. By that will, the deceased appointed Islam as his executor. He left the Condell Park estate to Nancy and Adam in equal shares upon their attaining the age of 22. The residue he left to “such of my children as survive me”. He left nothing to Zeina.

10. The second will was dated January 2014. It began with a clause in conventional terms revoking previous testamentary dispositions. By the will the deceased appointed Zeina as his executor. He left the Condell Park property to Adam upon his attaining the age of 21. Nancy was left another property at Georges Hall on attaining the same age. Again, the residue was left to such of the deceased’s children as survived him, and nothing was left to Zeina.

11. The will explained these dispositions in clauses 6 to 8:

6.   I have made no provision in my will for my said wife Zeina Hazem Sankari as she is financially stable and is able to support herself economically and financially. Throughout our marriage I have provided for my said wife and paid for all her living and medical expenses and have given her large amounts of money over the years. She is not in need of any provisions under this my will.

7.   I have made no provision in my will for my eldest sons Islam Abouelhamd and Ahmad Abouelhamd as they are both financially stable and are able to support themselves both economically and financially. Both Islam and Ahmad are beneficiaries of my company Salam Import Export Pty Ltd as trustee for Salam Import Export Family Trust. All my interest in the said company will be passed onto both Islam and Ahmad. My said sons both work and are financially independent. They are not in need of any provisions under this my will.

8.   I have only made provisions in my will for my son Adam and my daughter Nancy as they are financially dependent on me and both have not yet attained the age of eighteen (18) years. It is my wish that my real property be left for my said son Adam and my said daughter Nancy as I wish to ensure that they are financially set up. I have supported my wife and my two eldest sons to the best of my ability and they are now financially independent. I wish to provide my youngest son and daughter with the same benefits as their siblings and mother and they are in need of the provisions provided to them under this my will. It is my wish that my said wife and two eldest sons do not contest this will as I have adequately provided for them throughout my entire marriage.

12. The Georges Hall property was later, but still within the deceased's lifetime, sold. The gift in favour of Nancy of that property in the 2014 will (if that will is valid) therefore fails. The residue apparently consists essentially of the 60 per cent shareholding in Salam.

13. Only a copy of the 2014 will was in evidence. Affidavits before me showed that the deceased had the will prepared by a solicitor but took the original away with him when it was prepared. It appears that Zeina only became aware of the will after the deceased's death. She has searched for the original and has not been able to find it.

Issues for determination

14. In March 2019 Islam obtained a grant of probate in common form of the 2010 will. These proceedings were instituted by Zeina to propound the 2014 will (strictly speaking a copy of the 2014 will) in place of the 2010 will. Zeina is the plaintiff and Islam is the defendant.

15. In her statement of claim, Zeina sought an order revoking the grant of probate of the 2010 will. In its place she asked for a grant in solemn form of a copy of the 2014 will. Anticipating a contention by Islam that the original 2014 will was destroyed by the deceased with the intent to revoke it, Zeina sought a declaration that the will was nonetheless effective to revoke the 2010 will with the consequence that in the event of later revocation of the 2014 will, the deceased's Australian estate would fall into intestacy.

16. In his defence, Islam put the validity of the 2014 will in issue. In particular, he did not admit execution of the will (presumably this was intended to put due execution in issue). Nor did he admit knowledge and approval of the contents of the will by the deceased.

17. In submissions, counsel for Islam raised two further points. The first contention was that if the 2010 will had been revoked by the 2014 will, that earlier will had somehow been revived by the (alleged) destruction of the original 2014 will. The second contention was that Suzan was entitled to a share of the property on intestacy because she allegedly had remarried the deceased or become his de facto spouse. In the end, neither contention was pursued.

18. There was, however, a contested issue about the representation of the estate. Islam contended that Zeina was an unsuitable person to act as executor. Therefore, if the deceased's property is to be administered under the 2014 will or in intestacy, an independent person should be appointed to do so.

19. There are other proceedings involving the parties which concern the deceased's estate. First, Zeina has brought a family provision claim. This was instituted in 2019, shortly before the present proceedings were instituted.

20. It will be recalled that neither the 2010 nor the 2014 will made any provision for Zeina and instead left the Condell Park property to Adam and Nancy, and later Adam alone. It seems that Zeina claims not only the Condell Park property, but also the factory building at Milperra as part of the deceased's notional estate.

21. I say “it seems” because all that the summons claims is a provision “out of the estate and/or the notional estate of the deceased”. It does not identify the property which Zeina claims to be notional estate available to meet her claim.

22. It seems to me that this is unsatisfactory. In order to obtain provision from property forming part of the notional estate of the deceased, a plaintiff must obtain from the Court an order designating that particular property as notional estate. The plaintiff can and should specify the orders sought at the outset of the proceedings rather than at the end.

23. This is not just a matter of good pleading. It is important to ensure that the proceedings are properly constituted. Where property not held by the executor is claimed as notional estate, the holder (in this case Salam) needs to be joined as a defendant. Counsel for Zeina accepted when I raised this point that the summons needed to be amended accordingly.

24. A further complication with the family provision claim is that Islam alleges that the Condell Park property is held on trust. He relies on a deed of trust dated December 2015. The deed is said to have provided that the property was to be held on trust in favour of Nancy, Adam, any children they might have and (presumably by way of remainder) the Salvation Army.

25. In a way that is not clear to me, the deed is said to have provided that the trust was established by Islam and Ahmad before their beneficial interest was transferred to Nancy and Adam. Why they would have been involved is unclear. Perhaps the deed proceeded on the basis that the deceased had earlier held the Condell Park property on trust for them informally.

26. Counsel for Zeina confirmed that if the deed was effective, she claimed the Condell Park property as notional estate in any event. Again, it is accepted that this needs to be specified in the summons.

27. In July last year Hallen J directed that Islam file a cross-claim so as to advance his contention that the Condell Park property is held on trust. But this was followed by a further procedural error. Instead of filing the cross-claim in the family provision proceedings as had been directed, Islam's solicitors filed it in these proceedings. It is now agreed that these proceedings should be confined to the probate issues which arise. The cross-claim which has been filed is to be discontinued and re-instituted in the family provision proceedings in accordance with Hallen J's original direction.

28. Finally, in April this year further separate proceedings were instituted concerning Salam and the Milperra property. The plaintiffs in those proceedings are Suzan and Ahmad. The defendants are Islam and Salam (later added by way of amendment). The plaintiffs seek a declaration that the deceased's 60 per cent shareholding in Salam was held by him as a partnership asset. The partners are said to have been Suzan, Ahmad and Salam, and it appears that the partnership concerned business in Egypt and may have been governed by Egyptian law.

29. The plaintiffs also seek a declaration that the Milperra property is held under the terms of the Salam Import Export Family Trust. Although Zeina claims against the property in her family provision case as notional estate, it is unclear if she actually disputes that, subject to her claim, it is held on trust, as the plaintiffs allege. Apparently as an alternative to the partnership claim, Suzan also makes her own family provision claim against the deceased’s estate.

30. Considering all the proceedings together, the issues can be grouped as follows. First, whether the deceased's estate is to be administered under the 2010 will, the 2014 will or an intestacy and, if under the 2014 will, or an intestacy, whether by Zeina or someone else. Second, whether the deceased held the Condell Park property and the shares in Salam on trust or as partnership property or whether he had full beneficial ownership of that property and those shares. Third, what entitlements Zeina (or Suzan) has by way of family provision against the deceased's estate and the alleged notional estate (including the Condell Park and Milperra properties).

31. Today’s proceedings have their origin in an application made by Zeina to be joined as a defendant to the proceedings concerning Salam and the Milperra property. That application came before me as a result of being allocated through the Applications List.

32. It seemed to me that the application raised broader questions of how the three sets of proceedings should be managed. I concluded that the most efficient course was to hear these proceedings and dispose completely of the first group of issues which I have described above. Once that had happened the Court could proceed with dealing with the other issues that arise. I was able to allocate 1 June as the hearing date for this matter.

33. The hearing proceeded before me on 1 June for several hours during which I received the plaintiff's evidence and ruled on the objections to that evidence. Then the parties asked for time for negotiations. They returned to court advising me that they had reached an agreement to settle the proceedings in principle. The terms of the agreement were:

1. the grant of probate for the 2010 will was to be revoked;

2. a copy of the 2014 will was to be admitted to probate with Zeina as executor;

3. an independent solicitor was to be appointed as special administrator for the purpose of representing the estate in defending Zeina's family provision claim, with the special administrator's costs being funded by Salam out of the income from the Milperra property; and

4. the costs of the proceedings were to be reserved.

34. The parties have returned to court today with agreed orders in these proceedings (and in the other related proceedings). As they recognise, the proposed orders have a public dimension in that they deal with probate of the deceased's estate. I need to be satisfied by reference to the evidence that the orders are appropriate. I now turn to that question.

Validity of the 2014 will

35. The 2014 will was prepared for the deceased by a solicitor, Zaki Hajjar. His firm is called Hajjar Legal. The will was witnessed by Mr Hajjar and by Ibrahim Halabi, a solicitor employed by him. Affidavits from both of them were read as part of the evidence before me.

36. According to Mr Hajjar's evidence, the deceased brought to his office an existing will (presumably the 2010 will) and asked him to produce a new one. Mr Hajjar did so. Once the will had been executed, the deceased insisted on taking originals of the original old will and the original new will away with him.

37. Mr Hajjar gave evidence in generalised form to the effect that the deceased approved the contents of the will. I allowed that evidence because objection was only taken to it at a late stage.

38. But despite the generality of Mr Hajjar’s evidence, there is no reason to think otherwise than that the will reflected the deceased's instructions. The terms are clear and understandable. They are not very different from the 2010 will. Mr Hajjar's description of the surrounding events is straightforward. Due execution has been properly proved. A presumption arises from due execution that the deceased knew and approved of the contents of the will: Tobin v Ezekiel (2012) 83 NSWLR 757 at 771 [46].

39. It follows that the 2014 will was validly executed and, therefore, that the 2010 will was revoked. Whether or not the 2014 will is admitted to probate, the grant of probate of the 2010 will must be revoked.

Revocation of the 2014 will

40. Before the hearing it was suggested on behalf of Islam that the reason why the original of the 2014 will could not be produced was that the deceased had destroyed it with intention to revoke it. In an affidavit Islam asserted that the relationship between the deceased and Zeina had “broken down” and, therefore, it was “quite likely” that the deceased had destroyed the will. Counsel for Islam relied in written submissions in advance of the trial upon the presumption of revocation.

41. In Taylor v Waters (Supreme Court (NSW), 19 June 1992, unrep) Powell J stated the relevant law in terms which have frequently been cited in later cases. His Honour said (at 10):

[A]lthough, where a Will is traced into the possession of the testator and is not forthcoming on his death, there is a presumption that he destroyed it animo revocandi, the presumption may be rebutted. [T]he strength of the presumption depends upon the character of the testator’s custody over it. [W]here the Will makes a careful, and complete, disposition of the testator’s property, and there are no other circumstances to point to a probable destruction, animo revocandi, by the testator, the presumption is so slight that it may be said not to exist.

42. Islam's evidence was argumentative and inadmissible. Zeina's evidence in response was that the marriage relationship had its difficulties. In particular, she alleged that the deceased made her leave the house and she was forced to obtain apprehended violence orders against him because of violence or threats of violence on his part.

43. The parties were separated for several months, from April to August 2010, and again from July to October 2015. But according to Zeina they patched things up to some extent and resumed cohabitation before the deceased made what proved to be his final visit to Egypt some time in 2016 or 2017.

44. This evidence from Zeina was not disputed. More importantly, there would be little, if any, rational reason for the deceased to have destroyed the 2014 will on account of animus towards Zeina. She received no benefit under either will. The only difference was whether she was to be the executor. There is no evidence of any change of attitude on the deceased's part to the beneficiaries.

45. Furthermore, I think it is significant that despite originally opposing the grant of probate, Islam has not pursued that allegation at the point of leading the evidence which had originally been prepared. The very fact that he did not do so would tend to suggest that his advisors were unable to propound credible and admissible evidence and arguments to the contrary.

46. Finally, I should note that it is not, in any event, clear that the original will has in fact been destroyed. Zeina has been unable to search the Milperra property. There is also evidence that the deceased had a safe in Egypt. There is no evidence before the Court from Islam that he has searched for the will or has been unable to find it.

47. As I have already observed, the will was apparently rational and complete. I see no reason to think that the deceased destroyed the original will, intending to revoke it. In the circumstances, I consider that applying Powell J's statement of the law, the presumption of destruction with intent to revoke the will is to be so weak as to be non-existent. The copy will should be admitted to probate.

The appointment of an administrator

48. Ordinarily probate of the 2014 will would be granted to Zeina as the executor named in it, but her family provision claim creates a conflict. As I have mentioned, the parties have negotiated and agreed on an independent administrator to conduct the litigation so far as it involves meeting Zeina's claim. This appointment will not prevent Zeina from otherwise administering the assets of the deceased's estate or from defending other aspects of the claims made by other parties where she has no conflict in representing the estate's interests. In the first instance, it is agreed that Salam will pay the independent administrator's fees from the rent on the Milperra property.

Orders

49. For these reasons, it is appropriate to make orders reflecting the parties' agreed settlement. The Court:

1. Notes the associated proceedings 2021/94414 and 2019/240158.

2. Orders that the grant of probate made in proceedings 2018/359428 on 19 March 2019 to the defendant of the will executed on 14 September 2010 of the late Elsayed Sallam Abouelhamd (the deceased) be revoked.

3. Orders that the defendant deposit the original grant in the Registry forthwith.

4. Orders that the defendant serve an affidavit accounting for his dealings with the estate of the deceased, by 29 June 2021.

5. Orders that a grant of probate in solemn form be made to the plaintiff in respect of a copy of the will of the deceased dated 14 January 2014, which appears as annexure “A” to the affidavit of Zeina Hazem Sankari sworn on 4 September 2019.

6. Orders, subject to compliance with the Probate rules of Court, that probate of a copy of the Will of the deceased dated 14 January 2014 be granted to the plaintiff, Zeina Hazem Sankari, until the original is proved.

7. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.

8. Orders that the costs of the proceedings be reserved, for further determination.

9. Orders, until further order of the Court, that Tamara Goodwin (the “Special Administrator”), be granted special letters of administration of the estate of the deceased limited to defending and representing the interest of the deceased, and his estate, in Supreme Court proceedings 2019/240158 and 2021/94414 (limited to defending the first plaintiff’s claim for family provision relief).

10. Orders that any requirement for:

1. publication of notice of intention to apply for this interim grant of administration;

2. an administration bond and sureties; or

3. further compliance with the Probate Rules,

be dispensed with.

11. Grants liberty to any party, including the Special Administrator, to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the orders made, seeking to have costs orders made, and directions as to the conduct and/or further powers of the Special Administrator.

12. Notes the position of the defendant, that in consenting to these orders, it does not raise an estoppel or any other bar to the defendant challenging the accuracy, or truth of the representations within the 14 January 2014 Will, as to the legal and equitable ownership of the properties referred therein, and as to the deceased dealing with those assets as purported to be done on the face of the Will.

13. Notes the undertakings to the Court by the defendant not to dispose of, encumber or otherwise deal with:

1. the 60 ordinary shares previously held by the deceased and now in the name of the defendant; and

2. the assets of the Salam Family Trust, pending resolution of the associated proceedings. Otherwise, the defendant, as director of Salam Import Export Pty Ltd, ACN 133 934 764, is entitled to deal with the Milperra property in collecting its rents and paying its expenses (including the costs of the Special Administrator) and taxes, as the sole director of the Salam Import Export Pty Ltd, and in accordance with the Salam Family Trust Deed.

14. Notes the agreement between the parties that they be precluded from seeking any recourse against Tamara Goodwin personally for the payment of any costs order made in his, her or its favour in these proceedings, and that Tamara Goodwin is not to be personally liable in respect of any such costs order made.

15. Notes that the plaintiff undertakes to the Court that she will not take any steps to deal with the 60 ordinary shares that the deceased previously held in his name in Salam Import Export Pty Ltd, ACN 133 934 764, until further order of the Court, or until the resolution of the associated proceedings.

16. Notes the undertaking given to the Court by Salam Import Export Pty Ltd, ACN 133 934 764, by its director, the defendant, that it will be responsible, at first instance for the costs and disbursements of the Special Administrator, and that it will pay those expenses as they arise, as an advance to the estate of the deceased pending further order to the alternative, otherwise, absent such order, Salam Import Export Pty Ltd is entitled to a reimbursement for such costs from the estate, or any notional estate.

17. Grants leave to the cross-claimant to discontinue the cross-claim, to the intent that the defendant/cross-claimant is not prevented from seeking this relief in separate proceedings, or by way of a cross-claim in the associated proceedings, 2021/94414.

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Decision last updated: 17 June 2021