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. 1. 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. 2. 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.