Selem v Selem [2003] NSWSC 757

Selem v Selem [2003] NSWSC 757

On the wording of clauses 5 and 6 of the will, the defendant ceased to live in the Parramatta property in March 2001, which ended the postponement of sale and made the plaintiff entitled to her distribution from the proceeds. The only proven deduction was $500 for a broken glass panel; the other claimed repair deductions were not quantified or proved. The defendant's cross-claim was personal, was not a defence to the trustee or executor obligation to distribute, and in any event failed because the alleged threats and causation were not proved on the balance of probabilities. The plaintiff was therefore entitled to the balance of her $109,500 entitlement, interest and costs, and the...

Jurisdiction
Australia
Judgment Date
08 August 2003
Procedural Posture
Probate Proceeding Concerning Payment of a Residuary Bequest and a Cross Claim for Damages or Equitable Compensation / Ex Tempore Judgment After Hearing
Outcome
Plaintiff succeeded; cross-claim dismissed.
Legal Topics
['residuary Bequest' 'trust for Sale' 'postponement of Sale' 'executor and Trustee Duties' 'duress' 'unconscionable Conduct' 'equitable Compensation' 'interest on Unpaid Bequest' 'costs and Indemnity From Estate']
['wills and Probate' 'trusts' 'equity' 'civil Procedure' 'costs'] ['residuary Bequest' 'trust for Sale' 'postponement of Sale' 'executor and Trustee Duties' 'duress' 'unconscionable Conduct' 'equitable Compensation' 'interest on Unpaid Bequest' 'costs and Indemnity From Estate']

Case Brief

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Procedural Posture

Probate Proceeding Concerning Payment of a Residuary Bequest and a Cross Claim for Damages or Equitable Compensation / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ["Whether the defendant had ceased to live in the testator's home so that the postponement of the trust for sale ended and the plaintiff became entitled to payment of her share." 'Whether the application should proceed under s 84 of the Wills Probate Administration Act 1898 (NSW) or as an application against a trustee under Pt 68 of the Supreme Court Rules.' "Whether the defendant could deduct from the plaintiff's distribution amounts said to represent damage caused by the plaintiff to the Parramatta property." "Whether the defendant's personal cross-claim for damages or equitable compensation for alleged threats, duress or unconscionable conduct provided a defence to payment of the plaintiff's residuary bequest." 'Whether the plaintiff was entitled to interest and costs, and whether the defendant could be indemnified from the estate or trust property for costs.']

Ratio Decidendi

On the wording of clauses 5 and 6 of the will, the defendant ceased to live in the Parramatta property in March 2001, which ended the postponement of sale and made the plaintiff entitled to her distribution from the proceeds. The only proven deduction was $500 for a broken glass panel; the other claimed repair deductions were not quantified or proved. The defendant's cross-claim was personal, was not a defence to the trustee or executor obligation to distribute, and in any event failed because the alleged threats and causation were not proved on the balance of probabilities. The plaintiff was therefore entitled to the balance of her $109,500 entitlement, interest and costs, and the...

Court Disposition

Plaintiff succeeded; cross-claim dismissed.

Orders

  • ['Defendant to pay the plaintiff the balance of her entitlement of $109,500 after deduction of the $30,000 already paid.' 'The sum of $60,000 paid into Court to be released to the plaintiff, with the defendant obliged to pay the balance.' 'Defendant to pay the plaintiff interest in accordance with the Wills Probate...