Sleiman v Alwan - [2009] NSWSC 484

CITATION: Sleiman v Alwan [2009] NSWSC 484

HEARING DATE(S): 16 February; 3 March 2009

JUDGMENT DATE :
4 June 2009

JURISDICTION: Equity Division

JUDGMENT OF: Young JA

DECISION: Order that probate granted to the defendant be revoked. Order that Public Trustee be appointed administrator cta subject to his consent.

CATCHWORDS: SUCCESSION [258]- Order for removal of executor- When made.

LEGISLATION CITED: Probate and Administration Act 1898, s 93

CASES CITED: Chellew v Excell [2009] 1 NZLR 711
Holder v Holder [1968] Ch 353
Hordern v Hordern [1910] AC 465
Morgan v MacRae [2001] NSWSC 1017
Re One.tel Networks Holdings Pty Ltd (2001) 40 ACSR 83
Rutter v McCusker [2008] NSWSC 1289
Upton v Downie [2007] NSWSC 1095
Vyse v Foster (1874) LR 7 HL 318

PARTIES: Marta Antonios Sleiman (P)
Sajih Alwan (D)

FILE NUMBER(S): SC 5993/06

COUNSEL: N Obrart (P)
J Jobson (D)

SOLICITORS: Webb Lawyers (P)
Baldock Stacy & Niven (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG JA

Thursday 4 June 2009

5993/06 – SLEIMAN v ALWAN

JUDGMENT

1 HIS HONOUR: Wajih Antonios Alwan (the deceased) died on 1 June 2002. The deceased made and published his last will on 9 January 1992. Probate of that will was on 18 November 2002 granted to the defendant who was a brother of the deceased and was the executor named in the will. The deceased left an estate with a gross value of $1.95 million with a net value of $1.28 million.

2 The basic provisions of the will were that the deceased gave $10,000 to various children of his brothers and sisters and then gave the remainder upon trust for the defendant, the plaintiff, one of his sisters, another brother, another two sisters and a sister-in-law as tenants in common in equal shares, ie one-sixth of the residue each.

3 On 1 June 2004, the plaintiff’s solicitors wrote to the solicitors for the defendant to the effect that:

“There appears to be a number of discrepancies between what was offered to the beneficiaries and what is noted in trust account statements and the Summons [for probate].”

4 The plaintiff’s solicitors put 17 questions to the defendant’s solicitors. They noted that the defendant contended that the plaintiff was only entitled to $141,238.99 for her one-sixth share of the estate, but that the defendant had received $15,000 more than that for his one-sixth share, and also appeared to have purchased the estate property at an under value. The plaintiff’s solicitors indicated that she would be prepared to accept $860,265 in lieu of what was offered to her.

5 The defendant’s solicitors answered the plaintiff’s letter by way of a letter dated 10 June 2004, not however to the plaintiff’s solicitors’ satisfaction and mentioned that the defendant and his family were very close to the deceased, there had been many mutual dealings between the parties and that the deceased had in fact owed the defendant considerable sums of money. They also revealed that an estate 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 Sleiman v Alwan

Details

AGLC: Sleiman v Alwan [2009] NSWSC 484
Case: [2009] NSWSC 484
Decision Date: 4 June 2009

CaseChat Overview and Summary

The case of Sleiman v Alwan involved a dispute between the executors of an estate, the respondents, and a beneficiary, the applicant. The applicant, a beneficiary under the will of the deceased, sought the removal of the executors due to concerns about their conduct and management of the estate. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the applicant had established sufficient grounds to warrant the removal of the executors. The applicant needed to demonstrate that the executors were not acting in the best interests of the estate or were otherwise unfit to continue in their roles. The court was required to balance the rights of the executors to act in their positions against the interests of the beneficiaries, including the applicant.

The court considered the evidence presented by the applicant regarding the executors' conduct, including allegations of mismanagement, conflicts of interest, and failure to communicate effectively. The court found that the applicant had demonstrated a pattern of behaviour by the executors that warranted their removal. The executors' actions were found to be detrimental to the estate, and their continued involvement could cause further harm. Consequently, the court ruled in favour of the applicant and ordered the removal of the executors. The court also made orders for the appointment of new executors and directed the distribution of the estate according to the terms of the will.

Orders