Elayoubi, application of Wosif [2010] NSWSC 1004

New South Wales Supreme Court

CITATION : Elayoubi, application of Wosif [2010] NSWSC 1004

HEARING DATE(S) : 26 August 2010

JUDGMENT DATE : 26 August 2010

JURISDICTION : Equity Division Probate List

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 26 August 2010

DECISION : Statutory will authorised.

CATCHWORDS : SUCCESSION – STATUTORY WILL – no point of principle.

LEGISLATION CITED : Succession Act 2006 (NSW) – s 18, s 19, s 22

CATEGORY : Principal judgment

PARTIES : Wosif Elayoubi (Applicant)

FILE NUMBER(S) : SC 2010/282520

COUNSEL : Ms J. Needham SC (Applicant) D. French (Sol) (NSW Trustee and Guardian)

SOLICITORS : Somerville Legal (Applicant) D. French (Sol) (NSW Trustee and Guardian)

2010/282520 Application of Wosif Elayoubi

JUDGMENT – Ex tempore

26 August, 2010

1 This is an application under s 18 of the Succession Act 2006 (NSW) for a statutory will for Kaled Elayoubi. The application today is made in a situation of some considerable urgency. By reason of the disabilities which Mr Elayoubi has suffered from birth, it is highly likely that he will not live for very much longer. The application today is, therefore, both for leave to make the application under s 19 of the Act and, if that application is granted, contemporaneously an application is made for approval of the will propounded by the Plaintiff under s 18. 2 The application has, as I said, been brought on with considerable urgency due to the medical condition of Kaled Elayoubi. The evidence is somewhat brief, but although it is succinct, it covers all of the matters of which the Court needs to be informed. 3 The Plaintiff is the brother of Kaled who is now twenty-five years of age. Kaled suffers from spastic quadriplegia, severe scoliosis and extremely severe cerebral palsy due to complications arising during his birth. It is as a result of those disabilities that it is quite clear now that Kaled lacks testamentary capacity and will never gain testamentary capacity. He has never had testamentary capacity, so this is a nil capacity case. Kaled has been unable to communicate all his life. It is impossible to know what likely dispositions he would have made under his will, but the evidence points strongly to what a person in his position would have done had he had testamentary capacity. 4 The estate of Kaled will be in excess of $5 million as a result of damages awarded to him in respect of the injuries arising from the circumstances of his birth. There is no dispute as to the persons who might have a claim to Kaled's testamentary bounty. They comprise his mother, his father and his brother, who is the Plaintiff. 5 Kaled's father has been estranged from the family for many years. He himself has a mental illness, schizophrenia, and his estate is subject to financial management by the New South Wales Guardian and Trustee. Mr French appears on behalf of the father. As a matter of some urgency today Mr French obtained instructions from the father as to his wishes. Those wishes have been taken into account in enabling me to understand the claims that are likely to be made or would be made on the estate of Kaled and to have regard to what a person in Kaled's position would have done or is likely to have done had he had testamentary capacity. 6 It seems to me that the vastly superior claim to Kaled's testamentary bounty would be that of his mother, who has looked after him with unfailing love and attention from his birth and has coped with all of his severe disabilities. However, the estate of Kaled is sufficiently large to provide comfortably for his mother in the event of his death, which is unfortunately expected very soon. It is also sufficiently large to provide something for his father. 7 I take into account that his father has remarried and had no connection or little connection with Kaled for many years. It seems to me that the relationship between the father and Kaled is very possibly due to the father's own mental illness. His circumstances are that he is on a disability pension or a pension from Centrelink and he has presently another young family to look after. 8 It seems to me in those circumstances, the estate of Kaled being so large that his mother can comfortably be provided for, that a person of testamentary capacity in the position of Kaled would likely have made some provision for his father, bearing in mind his father's disabilities and his situation in life. 9 The Plaintiff now proposes a will which gives $1 million on trust for the father for his life and thereafter to the mother. The rest of the estate goes entirely to the mother. The draft will provides that out of the $1 million given on trust for the father, capital expenditure is authorised for the purchase of a home. Mr French submits that rather than a life estate in a lump sum with the benefit of a capital asset being purchased out of the fund, there should be an outright legacy to the father in the sum of $1 million and that the NSW Trustee and Guardian should have control of that fund. 10 There is much to be said for that course, however I do not think that it sufficiently recognises that the claim of the father on the estate is really one to his own maintenance and care and not for the benefit perhaps of the beneficiaries of his estate. It seems to me that the provision of a trust fund for life for the benefit of the father amply provides for his own needs during that time, and indirectly of course for the needs of those who are dependent upon him, but recognises that the vastly superior claim to Kaled's estate is that of his mother. 11 I am satisfied that all of the information required by s 22 of the Act has been furnished to the Court and that there is no other person who is likely to have any legitimate claim against the estate other than the mother, the father and the brother. The draft will provides for a gift over to the brother in circumstances which I think are entirely appropriate. 12 I therefore think that it is proper to proceed immediately both to grant leave to bring the application under s 19 and to approve the terms of the will under s 18. 13 I therefore make a declaration and orders in terms of paragraphs 1, 2, 3, 4 and 6 of the Summons, as amended. – oOo –