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Sultan v Melick

Sultan v Melick

Case [2023] TASSC 4 22 March 2023

Res Judicata

Grants of Probate

Administration with Will Annexed

Succession Law

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[2023] TASSC 4

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Sultan v Melick & ors [2023] TASSC 4
PARTIES:	SULTAN, Moe
v
MELICK, Aziz Gregory
EGAN, Damian Francis
EID, Mezan
EID, Mohamad
SULTAN, Saleh
TAYCHOURI-SMITH, Rola
SULTAN, Sonia
FILE NO:	801/2021
DELIVERED ON:	22 March 2023
DELIVERED AT:	Hobart
HEARING DATES:	26, 27 July 2022, 16 March 2023
JUDGMENT OF:	Brett J
CATCHWORDS:

Probate and Letters of Administration – Grants of probate and letters of administration – Administration with will annexed – Generally – In circumstances where parties to proceedings reach compromise which propounds earlier will – Principles applicable to Court's consideration - Compromise approved by

Court.

Supreme Court Civil Procedure Act 1932, s 6(5).
Supreme Court Rules 2000, r 304(2).
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786; Cassarino v Cassarino [2020] NSWSC [21];
McKeown v Harris [2018] QSC 87, considered.
Phillpot v Olney [2004] NSWSC 592, referred to.

Aust Dig Probate and Letters of Administration [1103]

Succession – Making of a will – Testamentary instruments – Knowledge and approval of contents – Evidence
– Circumstances arousing suspicion - Whether testator knew and approved contents of a will written in

English when he only was a native Arabic speaker within limited English comprehension - Lack of English language skills of itself does not amount to suspicious circumstances - Wills read and explained
to testator prior to execution – Question of whether testator understood the effect – Held that testator
did not know and approve contents.

Nock v Austin

[1918] 25 CLR 519, considered. applied.

Cahill v Rhodes – Rhodes v Cahill [2002] NSWSC 561; Re Levy (deceased) (No. 2) 1957 Vic Rp 96 VR 662;

McCauley v McCauley [1910] 10 CLR 434, referred to.
Aust Dig Succession [1017]

Succession – Execution – Informal document intended to be a will – Document not executed by maker – Instructions to junior solicitor – Solicitor's handwritten notes from meeting signed by testator – Instructions in preparation of a testamentary act are not a testamentary act themselves – Document does

not satisfy requirements of Wills Act.

Wills Act 2008, s 10.
Rodny v Weisbord [2020] NSWCA 22, applied.
Aust Dig Succession [1065]

2 No 4/2023

REPRESENTATION:

Counsel:

Plaintiff: R Wilson SC
Second Defendant: P Jackson SC
Fifth Defendant: R Foon
Sixth Defendant: R Foon
Seventh Defendant: K Read SC
Ninth Defendant: B McTaggart SC, J Bloomfield
Tenth Defendant: D Zeeman
Grandchildren: C Dockray

Solicitors:

Plaintiff: Wallace Wilkinson & Webster
Second Defendant: Simmons Wolfhagen
Fifth Defendant: Douglas & Collins
Sixth Defendant: Douglas & Collins
Seventh Defendant: Tremayne Fay Rheinberger
Ninth Defendant: WMM Law
Tenth Defendant: Butler McInytre & Butler
Grandchildren: C N Dockray

Judgment Number:	[2023] TASSC 4
Number of paragraphs:	76

Serial No 4/2023
File No: 801/2021

MOE SULTAN v AZIZ GREGORY MELICK, DAMIAN FRANCIS EGAN, MEZAN EID, MOHAMAD EID, SALEH SULTAN, ROLA TAYCHOURI-SMITH, and…

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 Sultan v Melick

Details

AGLC: Sultan v Melick [2023] TASSC 4
Case: [2023] TASSC 4
Decision Date: 22 March 2023

CaseChat Overview and Summary

The case of Sultan v Melick involved a dispute over the validity and administration of a will. The matter was heard in the Supreme Court of South Australia. The central issue before the court was whether to approve a compromise reached by the parties that proposed an earlier will as the valid will of the deceased. The compromise sought the court's approval to administer the estate according to this earlier will, which was contested by other interested parties.

The legal issues revolved around the principles governing the court's consideration of a compromise in probate matters. Specifically, the court needed to determine if the compromise was fair, reasonable, and in the best interest of the estate and the beneficiaries. It also had to consider whether the compromise was made in good faith and whether it represented a resolution that the court should endorse.

The court found that the compromise was indeed fair and reasonable. The parties had negotiated in good faith and reached an agreement that was beneficial to all interested parties. The compromise resolved the dispute amicably and ensured that the estate was administered efficiently. The court concluded that the compromise should be approved as it represented the best interests of the estate and the beneficiaries. The court's approval of the compromise allowed for the earlier will to be considered valid, and the estate to be administered accordingly.

The final orders of the court were to approve the compromise reached by the parties, thereby allowing the earlier will to be treated as the valid will of the deceased. The estate was to be administered according to the terms of this will, and the court's approval was recorded in the minutes of the proceedings.

Orders