Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 4) [2018] NSWSC 1788

Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 4) [2018] NSWSC 1788

The Court held that the conduct of both the testator and the defendant justified the litigation and investigation of the will, entitling the plaintiffs to have their costs paid from the estate, though with a 15% reduction for Youssef Mekail due to duplication. Separate representation was justified given the family provision claims. The Calderbank offers did not render it unreasonable for the plaintiffs to continue proceedings. The Court declared a constructive trust over the South Strathfield property and continued injunctions pending appeal.

Jurisdiction
Australia
Judgment Date
27 November 2018
Procedural Posture
Probate and Family Provision Proceedings / Costs Judgment Following Final Hearing and Orders
Outcome
Orders as to costs; declaration of constructive trust; continuation of injunctions.
Legal Topics
['costs' 'probate' 'testamentary Capacity' 'undue Influence' 'family Provision' 'calderbank Offers' 'constructive Trusts']
['equity' 'succession Law'] ['costs' 'probate' 'testamentary Capacity' 'undue Influence' 'family Provision' 'calderbank Offers' 'constructive Trusts']

Case Brief

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Procedural Posture

Probate and Family Provision Proceedings / Costs Judgment Following Final Hearing and Orders

Legal Issues

  1. 1 ["Should the unsuccessful plaintiffs' costs be paid out of the estate of the late Nadia Mekhail?" 'Was separate representation of the plaintiffs justified, justifying two sets of costs?' "Should the defendant's Calderbank offers alter the incidence of costs?" 'Should existing injunctions over the South Strathfield property be maintained pending appeal?']

Ratio Decidendi

The Court held that the conduct of both the testator and the defendant justified the litigation and investigation of the will, entitling the plaintiffs to have their costs paid from the estate, though with a 15% reduction for Youssef Mekail due to duplication. Separate representation was justified given the family provision claims. The Calderbank offers did not render it unreasonable for the plaintiffs to continue proceedings. The Court declared a constructive trust over the South Strathfield property and continued injunctions pending appeal.

Court Disposition

Orders as to costs; declaration of constructive trust; continuation of injunctions.

Orders

  • ['Declare that the defendant Georgette Hana holds the South Strathfield property on constructive trust for the estate of the late Nadia Mekhail.' 'Declare that the estate of the late Nadia Mekhail is entitled to the reconveyance from the defendant of the South Strathfield property.' 'Order the costs of Magdy Mekhail...