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

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

Despite the primary judge's findings, the respondent (Georgette Hana) did not discharge the onus to dispel the significant suspicious circumstances attending the preparation and execution of the 2014 will of Nadia Mekhail, especially as the solicitor’s evidence was based on misinformation provided by interested parties, precluding appropriate inquiry and advice about the exclusion of natural beneficiaries and change in testamentary intentions. The evidence, when considered as a whole, was insufficient to affirm the righteousness of the transaction and actual knowledge and approval of the 2014 will by the deceased. Accordingly, probate should not be granted of the 2014 will; the 2001 will...

Parties
Appellant: Magdy Mekhail; Appellant: Youssef Shoukry Wardakhan Mekail; Respondent: Georgette Hana; Appointed Executor (2001 Will): New South Wales Trustee & Guardian
Jurisdiction
Australia
Judgment Date
14 August 2019
Procedural Posture
Appeal / Judgment of the New South Wales Court of Appeal on Appeal From the Supreme Court of New South Wales, Equity Division
Outcome
Appeal allowed; grant of probate of the 2014 will set aside; 2001 will admitted to probate; directions made for further orders on property title and costs; costs of the appeal to appellants.
Legal Topics
Contested Probate, Testamentary Capacity, Knowledge and Approval, Suspicious Circumstances, Wills, Family Provision, Attorney’s Duties
Succession Law Probate Contested Probate Testamentary Capacity Knowledge and Approval Suspicious Circumstances Wills Family Provision +1 more

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Parties

Magdy Mekhail

Appellant

Youssef Shoukry Wardakhan Mekail

Appellant

Georgette Hana

Respondent

New South Wales Trustee & Guardian

Appointed Executor (2001 Will)

Procedural Posture

Appeal / Judgment of the New South Wales Court of Appeal on Appeal From the Supreme Court of New South Wales, Equity Division

Legal Issues

  1. 1 Whether the primary judge erred in granting probate of the 2014 will of Nadia Mekhail
  2. 2 Whether the propounder discharged the onus of proof in the presence of suspicious circumstances
  3. 3 Whether the will-maker had testamentary capacity and knew and approved the will

Ratio Decidendi

Despite the primary judge's findings, the respondent (Georgette Hana) did not discharge the onus to dispel the significant suspicious circumstances attending the preparation and execution of the 2014 will of Nadia Mekhail, especially as the solicitor’s evidence was based on misinformation provided by interested parties, precluding appropriate inquiry and advice about the exclusion of natural beneficiaries and change in testamentary intentions. The evidence, when considered as a whole, was insufficient to affirm the righteousness of the transaction and actual knowledge and approval of the 2014 will by the deceased. Accordingly, probate should not be granted of the 2014 will; the 2001 will...

Court Disposition

Appeal allowed; grant of probate of the 2014 will set aside; 2001 will admitted to probate; directions made for further orders on property title and costs; costs of the appeal to appellants.

Orders

  • Appeal allowed in each of proceedings 2018/328334 and 2018/335641.
  • Set aside orders 1 (grant of probate of will 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.