Mekhail v Hana; Mekail v Hana [2019] NSWCA 197

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 Hearing dates: 18 July 2019 Decision date: 14 August 2019 Before: Basten JA at [1]; Leeming JA at [2]; Emmett AJA at [190] Decision: In each of proceedings 2018/328334 and 2018/335641:

1. Appeal allowed.

2. Set aside orders 1 (being the grant of probate of the will of the late Nadia Mekhail dated 12 December 2014 to Ms Georgette Hana), 2 and 6 made on 5 October 2018 and the costs orders made on 27 November 2018.

3. In lieu thereof, (a) dismiss the cross-claim, (b) grant probate in solemn form of the will dated 27 March 2001 to the New South Wales Trustee & Guardian and (c) remit the matter to the Probate Registrar to complete the grant.

4. Direct the parties to provide within 28 days (a) agreed short minutes of order or, in default of agreement, (b) short minutes of order for which they contend and short submissions in support of those orders, dealing with the title to the South Strathfield property and costs at first instance and any other orders they seek to propound.

5. The respondent to pay the appellant's costs of the appeal.

6. Any dispute as to the final orders to be made to be determined by a single Judge of Appeal. Catchwords: PROBATE – contested grant – suspicious circumstances – whether proponent of will had discharged onus – will left whole estate to propounder – solicitor who explained and witnessed will believed propounder was testatrix's only daughter and next of kin – solicitor's erroneous beliefs caused by lies by those benefitting under will – inability to rely on solicitor's evidence to discharge onus – requirement to consider entirety of suspicious circumstances – appeal allowed and earlier will admitted to probate – consideration of merits of approach in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430