Dannawi v Dannaway

Allen, Nabil, Don and their Family - 1948 to 2017

1. Before that narrative commences, these reasons briefly comment on the credibility of the principal witnesses. Nabil and Don and a number of other family members each gave evidence. Assessment of their testimony is important to the Court's findings.

The Credibility of Parties and Witnesses

1. The plaintiff, Nabil, had an overwhelming sense of entitlement to a greater share of Allen's estate. This was based, in part, on the work he said he did in caring for the deceased, especially in the last months of his life.
2. His very definite views about himself and his family's history colours all his evidence and made it less than fully reliable. Nabil's evidence was so strongly given that it was almost shouted at times. He had no doubts about his recollection of family history.
3. He was prepared to concede some errors in his affidavit, which ordinarily might boost his credibility. But his corrections to his evidence often served only to increase his claim.
4. Nabil had a conspiratorial view of his family. He thought some of them were trying to cheat him, and his brothers, of income derived from the Tripoli properties originally owned by their father. Whether any of this is right cannot readily be judged in these proceedings, as the evidence did not descend to detail about it. But it seems improbable. Don did not share the plaintiff's views on this subject.
5. The defendant, Don, was an honest and reliable witness, who showed a degree of understandable exasperation at the plaintiff's behaviour. He assessed his brother, Nabil, accurately. He regarded the Nabil as prone to disputation. This is correct. Throughout his evidence, Nabil was openly contemptuous and dismissive of the opinions of others who disagreed with him.
6. Don honestly admitted he had little time for Nabil. But despite this, he did not consciously exaggerate his evidence against his brother. His capacity to account for what the plaintiff might have done for Allen was however limited, especially during the last few months of Allen's life. And he tended to take a limited view of Nabil's assistance to Allen during his lifetime.
7. Fadi Saboune, one of Allen's nephews, was a reasonable witness whose evidence the Court has no reason to doubt. Nabil alleged that he had mismanaged the family land in Tripoli, but there was no evidence before the Court to support this allegation. Fadi presented as a reliable witness and cross-examination did not damage his credibility.
8. Tony Jaajaa, a family friend, especially of Allen and Don, was an older man with some frailty. His evidence had a degree of uncertainty due to his age. But he was an honest witness who tried to be as helpful to the Court as possible. Not all his evidence is accepted.
9. Rashid Dannoua was a slightly uncertain witness. But his evidence was honestly given and, as will be seen below, is mostly accepted.
10. Michael Dannaoui, the other surviving brother of Nabil and Don, was a poor witness. His evidence was inconsistent on a number of matters. For example, he seemed confused about what was in his mother's will and he had strange views about whether Don might possibly be responsible for their mother's death. On the latter issue, Michael seems to have been prepared just to repeat unsubstantiated and inherently improbable rumours about the causes of their mother's death.
11. Like Nabil, Michael, had strong views that the three surviving brothers (Don, Michael and Nabil) should share Allen's estate equally, to the exclusion of any nieces or nephews.

The Dannawi Family's Early Years

1. The Dannawi family migrated to Australia from Lebanon in the 1970s. Each of the three surviving brothers spells the family surname in a different way. Upon their migration to Australia, the different encounters each family member had with Australian life, together with the different ways one can anglicise the pronunciation of their Arabic name, meant different spellings of their surname were generated.
2. Nabil was born in October 1961 in Lebanon. At the time of the hearing, he was 57 years of age. Allen and Nabil were two of the family of seven siblings: Allen, Michael, Nizar (who died in 1976), Don, Ghada and Lamis. Ghada and Lamis died late in 2017 after Allen.
3. Apart from Ghada and Lamis, the family all migrated to Australia commencing in the late 1960s. Before Nabil, each of Allen, Michael (or "Mick", as he is often referred to in the evidence) and Don migrated here at different times. Nabil arrived in 1984. By then, Allen and Mick had been here for over ten years. When he arrived, Nabil resided with his mother, Salma Dannawe.
4. Not long after the first members of the family emigrated from Lebanon to Australia they had purchased a family home together in Punchbowl, referred to in these reasons as "the Punchbowl property". In 1973, Allen, Don and their mother Salma, purchased the Punchbowl property together in equal shares. They lived in it together.
5. But in 1979 Don was engaged to be married. He and his wife wanted to make their way independently of the family and to buy their own house. Don sold his one-third share of the Punchbowl property to his mother, Salma, and to Allen, at the time of his marriage. The property remained in their name until Salma's death in January 2002.
6. The siblings' father died in 1983, the year before Nabil came out to Australia. By the time Nabil arrived in Australia Salma and Allen owned the Punchbowl property together as joint tenants.
7. Nabil says, and the Court accepts, that shortly after he arrived in Australia that Allen gifted him a car. This appears to have been a generous gesture to get Nabil started in his new country.
8. Between about 1984 and 1997 Nabil held down full-time employment mostly with the State Rail Authority ("SRA"). But in 1997 his SRA employment ceased. He was offered a voluntary redundancy payout in the sum of the $80,000. Shortly after receiving this voluntary redundancy Nabil took a break and visited Lebanon. About the same time Nabil separated from his first wife.
9. Nabil looked around for his next opportunity and in 1999 purchased a retail tobacco shop in Bankstown. But this venture was unsuccessful. The Court accepts that Nabil then had to sell off within a year what was left of his failed tobacco business.
10. Don draws upon events in Nabil's life at this time to attempt to discredit his financial ability. Don says that not long after Nabil arrived in Australia he commenced working with the State Rail Authority and deliberately elected to go on the dole for a period of time so he would not have to pay maintenance to his former wife. But Nabil became the recipient of a disability pension not long afterwards. Whilst there may have been a degree of self-interest about the timing of Nabil leaving his employment, Nabil's longer term situation is far less debatable. There is no reason to doubt that he is properly entitled to a disability pension and the Court's interactions with him lead the Court to the firm view that he is unemployable.
11. Moreover, even if this evidence is accepted in part, it would only show that money had gone through Nabil's hands in the past, some of it in potentially dubious activities, and had not been well managed. The Court accepts that poor financial management is a well-established part of Nabil's character. But a more fundamental problem with Nabil's character is that he is so conflict prone that stable sources of income that may be available to other members of the community are not as readily available to him. Don perceives this as Nabil's own fault. But for present purposes that just is Nabil's personality and how he will have to make his way in life in the future.

Nabil Since 2000

1. That business failure led to a long unstable period for Nabil. Since 2000, Nabil has drifted in and out of various forms of employment. Since then he has not been a long term full-time employee. He has from time to time operated casual handyman businesses such as, "Affordable Budget Handyman Services" and "Uncle Fred's The Handyman". He also started an online news related service specialising in Middle East affairs, called "Alankabout".
2. Salma died in 2002. As she and Allen owned the Punchbowl property as joint tenants, upon her death the property passed to Allen. But Salma had other estate, which was distributed. The Court accepts Don's evidence that the distribution from her estate to Nabil at that time was in an amount of $10,500.
3. After divorcing his first wife in the late 1990s, Nabil remarried. But his second marriage did not last very long. He separated from his second wife in 2002.

Nabil Stays with Allen and the Dependency Contest - 2003 to 2004

1. Nabil and his daughter Rebecca lived at the Punchbowl property in 2003-2004. Don says that after Nabil's separation from his second wife he lived in a self-contained flat for a period of about four months and then moved back with his ex-wife and children until about the end of 2003. He says Nabil only lived with Allen at the Punchbowl property for a few months.
2. Nabil concedes that he moved into his ex-wife's house for a short period of time during this period, as Don says, but it was not for very long and throughout he continued to share in paying Allen's electricity and water bills. But the net position was that for the price of a small contribution to utilities he was living rent-free at Allen's Punchbowl property and getting by far the better of the arrangement.
3. In contrast Nabil says he moved into Allen's house in about the middle of 2003 and lived there for at least 12 months. The Court accepts that evidence. Nabil's case is supported by a Centrelink letter sent to Nabil at the Punchbowl property in October 2003, confirming that Nabil was eligible for a Newstart Allowance. This letter confirms that Nabil was then already living at the Punchbowl property and was then using it as his mailing address.
4. The date of Nabil's departure from the Punchbowl property can also be fixed with some certainty. A letter from the Department of Housing to Nabil at the Punchbowl property dated 18 June 2004 offers him a housing commission tenancy at an apartment in Bankstown. Nabil ultimately moved to this address. This letter, and Nabil's own testimony, confirms that he did leave Allen's house in about June 2004. This means that Nabil was in the Punchbowl property for at least 12 months, from about June 2003 to June 2004.
5. Nabil claims that he was dependent upon Allen for at least this period. Nabil says, and the Court accepts, that Allen allowed Nabil and his daughter, Rebecca, to move in with him at this time. Nabil was then unemployed and experiencing financial hardship. He was not able to support either himself or Rebecca.
6. Nabil says, and the Court accepts, that when he moved into the property he resided in one of the bedrooms and his daughter lived in the room behind the carport, which had previously been his mother's bedroom, prior to her death in 2002. After Rebecca's complaints about the sanitary condition of parts of the external room near the carport she moved into the house and Nabil moved out to the external room. The fact that the external room had once been Salma's bedroom means that Allen is likely to have had easy communication with it so he could keep an eye on his aged mother. Allen was a reliable and supportive son and is unlikely to have set up a household arrangement that put his mother out of communication with him. Nabil and then Rebecca were in much the same physical location as Salma had been.
7. Don says, and the Court accepts, that he questioned Allen why he was allowing Nabil to move in at the Punchbowl property, to which Allen responded, "He just turned up with Rebecca. He is waiting for a housing commission property. It will only be for a very short time". Don says, and the Court accepts, that Allen went on to say, "I don't want him in the house, and he has to contribute to utilities. There is no cooking in the kitchen".
8. The Court accepts that Nabil presented himself suddenly to Allen in this way, giving his brother little choice but to take him in. He needed his brother's help, whilst he was waiting for allocation of a housing commission property. Allen was generously minded and took Nabil in. But there was greater communal household activity at the Punchbowl premises than Allen's reply implied.
9. Tony Jaajaa supports the inference that Nabil had imposed himself on Allen. The Court accepts his account that Allen was to some degree resentful of Nabil for having done this. Allen explained to Mr Jaajaa that Nabil was there "waiting for a housing commission home". But Allen did say to Mr Jaajaa about Nabil, "no one invited him…he just turned up". The Court accepts this was Allen's attitude to the situation. He accepted Nabil and Rebecca but was not entirely happy about it. But the Court does not accept Mr Jaajaa's recollection that Nabil and Rebecca were there for a period of two months. It was much longer than that.
10. Don believes that Nabil only stayed with Allen for a period of about four months. But the Court accepts that Nabil remained at Allen's Punchbowl premises until about mid-2004, when he and Rebecca ultimately moved into their allocated housing commission premises in Bankstown.
11. The Court accepts that Allen did not ask Nabil for rent at any time during his stay with Allen. Don is not in a position to dispute Nabil's evidence about this. Moreover, Nabil's evidence on this subject has a high degree of plausibility. Nabil was suffering financial hardship. He needed somewhere to live with his daughter, as a respite. Allen by all accounts was a generous minded family member who was likely to have offered accommodation to members of his family on a rent-free basis.
12. But Don submits that Nabil's period of residence with Allen should not be classed as financial dependency. The reason he gives for this is that is what he would expect of members of his family as a matter of family honour, custom and loyalty. He says this action of Allen favouring Nabil should not be characterised as creating any financial obligation. In one sense, Don's argument actually supports Nabil's case: it demonstrates the fundamental family ethos of looking after other family members, albeit it is said without creating financial obligations. Nabil did accept Allen's gratuitous hospitality.
13. But Don's analysis does not reflect the legal position. The simple facts are that Nabil stayed in Allen's house for many months, being accommodated without being charged rent. Household expenses were not substantially pooled, while Nabil was staying with Allen. But Nabil did make some contribution towards utilities and other expenses whilst he was there. But that did not offset the very considerable benefits that Nabil and his daughter derived from living in the household.
14. Don criticises Nabil's dependence case by pointing out that he was only staying at Allen's place in the "granny" flat and he was not therefore in the same "household". But whilst the granny flat gave Nabil and his daughter a degree of independence to come and go without accounting daily to Allen, and whilst they did not eat meals all the time with or share the cost of food and all household items with Allen, they were nevertheless living in very close association with Allen. They were within a short distance and in constant interaction with one another on the same relatively small piece of land. And they did share a limited number of household utility expenses. In my view, they all enjoyed the convenience of separate living spaces but still lived in the same "household". This part of Nabil's case is made out.

Nabil - 2005 to 2009

1. In 2005 Nabil was convicted of a number of Commonwealth offences and received a suspended sentence. By then Nabil had well settled into his Bankstown apartment but he had been unemployed for a long time.
2. Don says that at about the time of his conviction Nabil approached him and asked him to keep for him a sum of $100,000. Nabil denies this conversation and denies he had any such sum to leave with Don for safekeeping. Don is to be accepted in his account of this conversation but just what the conversation means is uncertain. On such limited information the Court is not prepared to infer that Nabil did have $100,000 to leave with Don. Nor is the Court prepared to infer, as Don seeks to imply, that the sources of such funds in Nabil's hands were possibly illegitimate.
3. By late 2009, Allen was first diagnosed with cancer. Allen seemed to be able to manage his illness quite well at home until 2016.

Nabil's Alleged Other Income

1. Don's evidence includes a variety of statements suggesting Nabil has various undisclosed sources of income and is not now in need of any further provision from Allen's estate. Upon closer analysis this evidence is mostly based on disputed conversations, or on speculative material that the Court is cautious about accepting.
2. Don claims that Nabil owns and operates the Arabic online news service called "Alankabout", which is said to be one source of income for him. But Nabil says this service is merely a blog and does not make him any money. It is difficult to dispute what Nabil says about the commercial viability of this service.
3. Don also claims that Nabil operates a business from his home known as "Sharzade Boutique", a small business that sells women's apparel. Nabil denies this. It is probable, in my view, that Nabil has pursued some business ventures of his own. But Nabil claims that none of them were a success. Given Nabil's difficult personality their lack of success is not entirely surprising. Moreover, Nabil does not present as a person with much foresight who would have the necessary judgment and organisational skills to see through the effective growth and development of a small business.
4. Don's evidence also suggests that Nabil has access to large unexplained amounts of cash. He says that on one occasion in 2015 Nabil approached him and said "I have $100,000 in cash which I want to put into a safe-deposit box. Will you open a Commonwealth Bank safety deposit box in your name and put the money into it?". Don says that he denied Nabil's request. Nabil denies this conversation. The Court does not accept that it took place. Whilst the Court often prefers Don's evidence over Nabil's, this conversation is so lacking in context that is difficult to give it any weight at all.

Allen's Final Months - 2016 to 2017

1. Allen was diagnosed with cancer as early as 2009. He was intermittently in hospital for chemotherapy and other treatment until 2016.
2. Nabil claims, and Don disputes, that Nabil visited Allen regularly between 2009 and 2016. Nabil says, and the Court accepts, that he took Allen regularly to doctors' appointments, as Allen could not attend alone, and that he would often take care of Allen's property when he was in hospital.
3. Don disputes that Nabil gave this degree of assistance to Allen. Don's criticisms are partly correct. Nabil cannot be fully relied upon to give a sound, dependable account of the assistance he gave to Allen in this period. Despite that, he did indeed give support to Allen and was considerably more supportive of Allen than Don will allow. Don could not have been observing all the time to see what Nabil did for Allen. Michael corroborates Nabil's support for Allen at this time and is accepted on this issue. And there is some independent evidence supporting Nabil's evidence that he did give this kind of assistance to Allen.
4. A number of the witnesses who gave evidence supporting Nabil's case of assisting Allen in his later years were not cross-examined. They corroborate Nabil's account that he assisted his brother Allen in health matters. The Court accepts that Antonios Bou Rizk, a friend of Nabil's for about ten years, and a regular visitor to Nabil's house, witnessed Nabil receiving phone calls from Allen, apparently seeking Nabil's assistance to purchase medicine. The Court accepts Mr Rizk's recollection that every time this happened Nabil would excuse himself and go and get the medicine for Allen. Nabil's invariable response to these calls was to ask Mr Rizk to leave, so Nabil could assist his brother Allen. Mr Rizk could not recall any occasion where Nabil preferred to continue in his company rather than assist his brother Allen.
5. Another witness not cross-examined is Mr Kamal Zakhia, the pharmacy manager at the local Punchbowl pharmacy. He recalls, and the Court accepts, that Allen was a regular customer of the pharmacy for many years. Mr Zakhia was aware of the medication being prescribed to Allen during his final most serious illness. Mr Zakia met Nabil in 2016 and recalls Nabil attending the pharmacy with Allen on occasions. When Allen was very sick Nabil would come into the pharmacy to pick up medication for Allen. This corroborates Nabil's account that he assisted Allen in this way.
6. But in about June 2016, Allen's health dramatically worsened. Allen did not have a spouse or children to be close personal supporters at such a time. He needed assistance to give him personal care, following treatment when he could not look after himself.
7. Nabil did provide such assistance to Allen. Nabil says, and the Court accepts, that, particularly in late 2016, Allen would from time to time call Nabil, screaming out loudly because of the pain that he was in. Nabil would drive to the Punchbowl property and find Allen "in a very bad way". Nabil says and the Court accepts that Nabil would assist on such occasions in calling the ambulance to take Allen to the emergency ward at Bankstown hospital and Nabil would be with him while he was there.
8. The comparative importance in Allen's life of Don and Nabil is demonstrated by another witness, Rashid Dannoua, who heard Allen say to him some time in 2016 "Nabil doesn't do anything. Whenever I have asked him to do something for me, he is always too busy". In my view, the deceased probably said something like this to Mr Dannoua. Nabil was not as attentive to Allen's needs as Don. And at times Nabil did not respond appropriately or promptly. This may have been an example of Allen's responsive annoyance to one of those occasions. But the Court does not accept as at all accurate that, "Nabil doesn't do anything".
9. And there is a conflict in the evidence between Mr Rashid Dannoua and Nabil about whether Nabil ever visited the Punchbowl property to see Allen. Mr Dannoua cannot recall seeing Nabil there when he visited Allen at the Punchbowl property. But Nabil has a precise recollection of sitting outside in the sun with Rashid and Allen. In my view that fairly precise recollection of Nabil's is more likely to be correct.
10. Ambulance callouts in 2016 to Allen's house indicate that his health was declining in 2016. He needed emergency ambulances at home on a number of occasions that year. Nabil lived much closer to Allen than Don. As a result, Don did ring Nabil and ask him to drop over to the Punchbowl property, check that ambulances had arrived and ensure that the house was locked up after Allen was taken to hospital by ambulance. But Don was not aware of all of the occasions where Nabil gave this kind of quick informal assistance to Allen.
11. Allen sold the Punchbowl property in early 2017 and moved to the Chester Hill Aged Care Facility, where he mostly resided until his death in August 2017. Not long after he moved into the Chester Hill Aged Care Facility he made his last will on 12 January 2017.
12. After Allen moved into the Chester Hill Aged Care Facility Nabil took a trip to Lebanon for a short period. He was questioned under cross-examination how he could afford this trip given his parlous financial position. Nabil said that he paid for an economy class airfare for himself but when in Lebanon relied entirely upon the goodwill of relatives. Whilst this may seem like a strange story, in Nabil's case it can be accepted. His behaviour in presenting himself to Allen back in 2003 with his daughter Rebecca, when he had fallen on hard times is something of an indicator of his personal style. He is quite prepared to present himself to relatives and friends and rely upon their generosity to support him. The Court expects this is what he did in Lebanon as well.
13. But Nabil did visit his brother Allen in the nursing home during this period. The Court regards Don as the most attentive of the brothers and Allen relied upon him far more than either Mick or Nabil.
14. The Court accepts Mr Jaajaa regularly visited Allen at the Chester Hill Aged Care Facility in the first eight months of 2017. He cannot recall seeing Nabil there. But the Court accepts that Nabil did make regular visits, although not as frequently as Don.
15. There is a dispute between Don and Nabil about whether Nabil was prepared to assist Allen being moved into a high care facility at Revesby in the last month to six weeks of his life. Don claims that he contacted Nabil to ask for his help to move Allen's belongings. He says he gave Nabil four days' notice of the move. But Nabil's account was that Don gave very little notice and Nabil was just not in a position to respond. This appears to have been one of those communication misunderstandings that happen within families time to time. Nothing can be drawn from it either way.
16. When Allen was diagnosed with cancer Don became his main carer and the principal person to whom he turned whenever he needed anything. The Court accepts that it was Don took him mostly to doctors and hospitals as were required. The Court also accepts that Allen leant more and more on Don as his health deteriorated. But this is not to say that Nabil did not, as he says he did, make a valuable contribution to Allen's welfare and well-being in his later years.

Allen's Will - January 2017

1. Allen's will is dated 12 January 2017 and appointed Don as his executor and trustee and gave Don a gift of $20,000 to be used in his absolute discretion to meet any of the costs associated with fulfilling the terms of his will (clause 4).
2. Allen's will then directs his trustee to hold his estate on trust for five groups of people. The first group are three nieces who each receive between 4.5 per cent and 3.6 per cent of his estate.
3. The second group are seven nephews, who each receive between 2.25 per cent and 4.5 per cent of the estate, with most of them receiving 4.5 per cent.
4. The third group are Allen's sisters. In this group Ghada receives 3.71 per cent and Lamis 3.5 per cent. The trustee was expressly entitled in his absolute discretion to pay the amount to both sisters by instalments. Gifts to persons who did not survive the testator for a period of 30 days are to be treated as if the person died before the testator (clause 2). But both Ghada and Lamis survived the testator by more than 30 days and died later in 2017. Their respective shares of Allen's estate will pass to their executors or administrators.
5. The next group of beneficiaries under the will are Allen's brothers. As earlier indicated they take under the will in the following proportions: Mick Dannaoui - 6.5 per cent; Nabil Dannawi - 5 per cent; and, Don Dannaway - 31.05 per cent.
6. The final group of beneficiaries are four charities, who together receive approximately 6 per cent of the estate.
7. Apart from Don, no one receives more than 6.5 per cent of Allen's estate under the will. The testator has clearly taken some care to work out exact percentages for all relatives to benefit under his will. He clearly had a finely developed sense of the relative testamentary claims on his bounty of each family member. Among Allen's brothers, Nabil is the least benefitted under the will. He only receives slightly more than most of the nieces and nephews, who mostly receive 4.5 per cent of the estate, although one niece receives a little more.
8. Notice of these proceedings was sent to all beneficiaries of Allen's will. No other beneficiary has made a claim against the estate and pursued it to hearing. Apart from one niece, Manelle, no evidence was adduced on behalf of the estate of the financial need of any of the other beneficiaries. The Court is entitled to assume, in these circumstances, that none of these other beneficiaries has particular financial needs that the Court should take into account in exercising Succession Act, Part 3 jurisdiction.

Two Family Properties in Lebanon

1. Nabil's generation of members of the Dannawi family own equal shares in two properties in Tripoli in northern Lebanon, which had been owned by their father. The two properties are a residential apartment and shop, in the El Mina retail district of Tripoli. During the trial, evidence was led from Fadi about the value of these properties. But it was objected to and only admitted on the voir dire, until the Court determined the quality of any source of the evidence and an opportunity was afforded for any evidence in reply.
2. In his oral evidence, Fadi said that he had been told by local Tripoli real estate estimators that the shop and the residence together could be worth between $850,000 and $900,000 Australian dollars. But his evidence did not identify the estimators. Nor did it break up the combined estimate of value of the shop and the residential property.
3. Fadi's understanding of the present entitlements to that property in the Lebanon, after Allen's death, was as follows: Nabil was entitled to 25 per cent, Don to 25 per cent, Mick to 25 per cent and the children of the two deceased's sisters, Ghana and Lamis, combined are entitled to 25 per cent.
4. The Court made directions for the parties to supply, if possible, agreed estimations of the value of these two properties. Unfortunately, agreement was not able to be achieved.
5. Following those directions, evidence of a real estate appraiser advanced by Nabil was the apartment was worth a maximum of US$140,000 and the shop a maximum of US$80,000. The combined amount of US$220,000 (at current exchange rates of 68 cents in the dollar is estimated by this source to be AU$323,719.00).
6. The estimate provided on behalf of Nabil was not agreed to by Don, who supplied separate estimates. This course of events shows how difficult getting family agreement about the disposition of these properties in Lebanon will be.
7. The estimates supplied on behalf of Don were to the effect that the residence was valued between US$233,700 to US$246,000. Converted into Australian dollars, at an exchange rate of 68 cents, this is a range of AU$345,839.78 to $364,041.87. Don also said that the commercial property was valued at between US$102,000 and US$108,800. Converted into Australian currency, at an exchange rate of 68 cents, this is a range of AU$150,944.19 to AU$161,007.14. Combined therefore, the full range of both properties in Australian dollars on Don's estimates is AU$496,783.97 to AU$525,049.01.
8. Each of the surviving brothers is entitled to one quarter of these properties, together with the combined quarter share of their sisters.
9. But there is great difficulty in bringing the Tripoli properties to account in any rational way in these proceedings. There has been much family disputation about them. There has been little co-operation in their past management. Whether or not Nabil's suspicions about misapplication of rental money have any basis is impossible to say on the evidence before this Court. Nabil's real estate appraisers say that property values are greatly depressed in Lebanon at the present time (by as much as 50 per cent), in part due to its uncertain security environment.
10. The lack of family co-operation to date in the management of the properties does not allow the Court to infer with any confidence that the value of these properties will be realised in the near term. Moreover, no advice is yet available as to whether the transfer of the sale proceeds from Lebanon to Australia will attract taxes and at what level. The best the Court can do is to take as a working assumption that in the uncertain future Nabil may receive some of these proceeds. But the Court is not prepared to reduce the assessment of Nabil's needs on the basis of possible receipt of these funds. Their receipts are attended by too much uncertainty.

Nabil's Current Needs

1. Nabil is currently unemployed. He suffers from severe depression and type 2 diabetes. These medical conditions are supported by a medical report from his general practitioner. He says and the Court accepts he has not worked since 1999. His personality, as directly experienced by the Court, indicates that he would be a most difficult employee in any workplace. He has a personal style that is likely to grate on others constantly. He has had this disadvantage for many years.
2. Nabil and Rebecca still live together. They have to ration their food weekly. They are not able to afford many groceries. Part of Nabil's claim was based on the fact that he believes he will have to provide assistance to Rebecca in the future.
3. Nabil says his immediate need is that his current motor vehicle is experiencing many problems and is constantly breaking down. He says he would like to open a savings account, so he could have funds "secured in the case of an emergency".

Applicable Legal Principles - Dependence and Factors Warranting

1. The applicable legal principles are not in contest. For an order for provision to be made under Succession Act, s 59 in favour of an applicant, the Court must be satisfied that the applicant is an "eligible person" within Succession Act, s 57.
2. Nabil claims that he is an "eligible person", within Succession Act, s 57(1)(e). To satisfy this, the Court must find that Nabil was "wholly or partly dependent upon the deceased" and "at that particular time" was "a member of the household of which the deceased person was a member".
3. Nabil founds his claim on the basis that he resided rent-free with the deceased at his property from late 2002 to 2004, and was, during this time, largely dependent on the deceased. Nabil further submits that the deceased took "great care" of him and his daughter, and provided groceries, paid most of their bills, and gave him a car, without requesting repayment.
4. The defendant contests that Nabil was dependent upon the deceased, submitting that the deceased permitted Nabil to use a room in his house for four months, but was not a member of the household of which the deceased was a member; not satisfying the eligibility requirements pursuant to Succession Act, s 57(e).
5. The Court has found that Nabil was a dependent member of the deceased's household between mid-2003 and mid-2004, and therefore qualifies as an "eligible person" within Succession Act, s 57(1)(e).
6. The requirements of Succession Act, s 59(1)(b) are therefore engaged. So, it is necessary for the Court to determine whether, having regard to all the circumstances of the case (whether past or present): "there are factors which warrant the making of the application". And if there are no such factors, then the Court must refuse to proceed in respect of this basis of eligibility.

Consideration - Factors Warranting

1. Finding of "factors warranting" is not difficult in this case. The plaintiff already appears in Allen's will. Allen has already recognised him as a natural object of Allen's testamentary recognition.
2. Indeed, in this case, there were few such objects. Allen's closest surviving living relatives are Don, Michael and Nabil. He appropriately recognised them all in his will. His nieces and nephews are more distant relations and there is no evidence that any of them were especially close to him compared with his siblings.
3. The defendant argued that in a context where an applicant is already recognised in a will, to establish "factors warranting" the bringing of the application it was necessary that the plaintiff must show some further special factors of testamentary recognition that would warrant provision for the plaintiff being increased.
4. But in my view, the authorities do not go that far. Cases such as Re Fulop (deceased); Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679 ("Re Fulop") justify the view that all a plaintiff has to show to establish "factors warranting" is that he or she is a natural object of a deceased person's testamentary recognition. In my view, the Nabil has shown this.
5. But even if "factors warranting" is interpreted here as factors warranting an increase in the provision to Nabil, as distinct from any provision, Nabil still satisfies that test. The Court found that in the last months of Allen's life, after he had made his will, Nabil did visit him regularly in the Chester Hill aged care facility. Nabil was not as attentive a brother as Don and was never likely to be. But he did improve near the end of Allen's life.
6. But because Allen's will was made some months before Allen's death Allen's testamentary judgements about the proportion of his estate he should give Nabil did not capture the assistance that Nabil gave him in those final months. There is a basis therefore for concluding that the will, in setting the percentage of the estate for Nabil, falls short of the best judgment that could have been made by Allen about Nabil right at the end of his life and is a basis for disturbing and increasing the existing provision made for Allen. In my view, this is another factor warranting the Court making a further order for provision in this case.

Applicable Legal Principles - Adequate Provision

1. The final questions now relate to whether an order for provision should be made in Nabil's favour. The test of whether provision should be made in any case is set out in Succession Act, s 59(1)(c):- "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both."
2. There are many judicial statements summarising the operation of what is said to be a two-step provision. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201, at 209, the High Court of Australia said of the test under the previous legislation:- "The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co8. The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."
3. Whether the two-step test operated with the same full vigour in the current legislation has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case, which is a very clear one on the question of whether or not adequate provision has been made for Nabil once he has been shown to be an eligible person.
4. Other authorities explain in more detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ in Drury v Smith [2012] NSWSC 1067, (at [153], [154], [155], [158] and [160]), which relevantly provides:- "[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" [154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." [155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." … [158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." … [160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.""
5. That then leaves the Court to decide what appropriate provision is in this case.

Consideration - Adequate Provision

1. Nabil saw his application as a way of rewriting Allen's will to restore a position in which each brother was treated equally under the will. Indeed both he and Mick had a fundamental disagreement with Allen's will in that it did not treat each of Allen's surviving brothers equally.
2. But these views misunderstand the nature of the Court's jurisdiction under Succession Act 2006, Part 3. The object of the Court's jurisdiction is not to act as a substitute testator for Allen to re-evaluate his brothers' claims upon his testamentary bounty and produce some allegedly desirable equality among them. Rather, the role of this jurisdiction is to determine for "eligible persons" whether or not adequate provision has been made for their proper maintenance, education and advancement in life. And if adequate provision has not been made, the Court can make such order as is appropriate to make such provision. This was explained to Nabil during the proceedings, but the Court is doubtful whether he fully comprehended it. Nevertheless, that is the jurisdiction, which the Court will exercise.
3. Adequate provision has not been made for Nabil's proper maintenance, education, and advancement in life. Aged in his mid-50s the Nabil has no resources to fall back on to meet the vicissitudes of his later life. The Court accepts that he has no real property and lives on a disability pension and lives in housing commission accommodation paying $200 per week in rent and only has an old car and holds no other assets of value. There is little doubt that he could have managed his life and husbanded his resources far better than he has. But he has what he does and it is not anywhere near enough for his future.
4. The will gives him a little under $40,000. That is not enough to meet his basic needs of purchasing a new motor vehicle and putting a fund aside in a savings account, or perhaps in a superannuation fund, to help meet the demands of his later life.
5. And it can be anticipated that the demands of Nabil's later life will be significant. Nabil is prone to falling into conflict with others. His propensity for such conflicts is likely to reduce the numbers of friends he may have to support him in times of future need. He has already been divorced twice. And he is not on speaking terms with some of his own children. Such conflicts as he does generate in the future may well be expensive, either personally or legally.
6. But what is adequate provision for Nabil? Given the size of the estate and the numbers of other beneficiaries, it is quite unrealistic of the plaintiff to expect provision that might now fund him into permanent accommodation. The best that could realistically be crafted as an order for provision for him from this estate would be enough to cover the cost of a motor vehicle and a discretionary fund to meet future expenses. That is indeed how he put his case.
7. But the shaping of such an order must recognise that over the term of Allen's life Don did much more for Allen than Nabil. Don is deserving of something like the kind of provision which Allen made for him in the will. The Court's findings support the same conclusion that Allen reached in the will: that Don should hold far greater place in Allen's testamentary recognition than Nabil.
8. At this point one part of Nabil and Michael's evidence can be firmly rejected. They attempted to dispute Don's evidence that Don was close to Allen. Nabil cites instances of alleged disagreements between Allen and Don. The Court accepts there was a period of early tension between Don and Allen in the 1980s. But that was fully resolved by that time. Don and Allen were quite close throughout their lives.
9. The appropriate order of analysis here is to fix an amount for Nabil that is adequate for his proper maintenance, education, and advancement in life and then to consider how it should be borne. In my view, an order for provision should be made in the plaintiff's favour to give him a legacy of $85,000 in substitution for his present provision under the will.
10. That is more than double what he would presently receive from the estate under the will. To receive this amount from the estate as the will is presently constructed and before further costs are brought to account, would have given him approximately 10 per cent of the estate. But it is appropriate to give him a definite figure as a legacy so that he gets a certain amount. This will give him identifiable resources should he need to fall back on them, that will not be reduced as the net value of the estate falls as it bears other litigation-related costs.
11. How should this figure be borne? In my view, once the plaintiff receives a guaranteed amount such as the legacy provided for here, and has an appropriate costs order made in respect of his claim, there is no reason to make orders to vary the relative proportions of any of the other beneficiaries of the estate, except for the charities which are dealt with separately below. The other beneficiaries will each benefit in the same proportions as they did under the will. Leaving the existing percentages intact leaves Don with the pre-eminent position in Allen's testamentary intentions that he currently holds and that Allen intended. Michael will hold his existing percentage but that will now be over a smaller gross estate. And all Allen's other more distant relatives will continue to share in his estate to a degree.
12. Notice has been given to each of the charities named in Allen's will. None of them have sought to appear in the proceedings and argue that the amount reserved under the will for charity not be reduced. These are not presently charitable trust proceedings under the Charitable Trusts Act 1993. No notice has been given to the Attorney General of these proceedings. Nor is there any alleged breach or supposed breach of any charitable trust in contest here. But it makes little economic sense for the charities to seek to be represented in these proceedings. Their six per cent of the estate of approximately $787,000 is $47,220. Split among four charities this is only about $12,000 each.
13. But the public interest in preservation of these gifts to charity is an independent consideration in the calculation of how the burden of the increased provision to Nabil should be borne. The Court will not permit the amounts given to the charities to be reduced from what it would have been had the estate been administered without this litigation. That should not be a difficult calculation to undertake. For this calculation there should be notionally added back into the estate all the cost of this litigation and the increased provision to Nabil made in these reasons should be ignored. The amount the charities would have received on that scenario can then be calculated. Thereafter when the costs of these proceedings and the financial burden of Order 1 are added back into the estate, their burden should be borne by the remaining beneficiaries (that is the beneficiaries other than Nabil and the charities) in their existing proportions.
14. The Court is mindful that one of the beneficiaries, one of Allen's nieces, Mannelle who is in her mid-30s and suffers a medical infirmity has indicated that she does not consent to her share being reduced to pay any other claimant against the estate. The Court can assume that other beneficiaries would take similar views and this is implicit in Don's opposition to this claim. The Court has taken those views into account but is still minded to make provision in the manner ordered in these reasons.
15. Nabil's submissions suggested that one way of approaching the burden of any provision in his favour would be to eliminate the provisions for the nieces and nephews, preserving only the entitlements of the brothers and reducing Don's entitlement. But such an approach does little justice to the logic of Allen's will, nor does it respect the relationships he had with his nieces and nephews. Allen was highly regarded by his nieces and nephews. One of them, Mannelle Dannaoui, who receives the most of any of Allen's nieces said that Allen was regarded within the family as the "hard-working uncle". He appears to have had the time for and good relationships with all his nieces and nephews. And this submission ignores the importance of his pre-eminent relationship with his brother Don who he clearly had closer contact with and regard for than almost any other family member.

Costs

1. Ordinarily this result would bring with it an order for costs in Nabil's favour. But the Court indicated in the course of closing submissions that it would hear any submissions in relation to a cost-capping order. The Court will appoint a suitable date for that to occur. The Court indicated it was prepared to make cost-capping orders with this judgment but was told that Calderbank offers have been made in the proceedings. Therefore the ultimate disposition of costs will depend upon a comparison of the result of these proceedings with those Calderbank offers.
2. The Court will appoint another date to deal with costs. But given the modest size of this estate and the need to conserve costs, it may not be necessary for the parties to appear before the Court again. The Court will set a provisional date for mention and will direct the parties to file limited evidence and submissions on costs capping issues.

Conclusions and Orders

1. For these reasons the Court orders as follows: 1. Make an order for provision out of the estate of the deceased by way of a legacy of $85,000 in substitution for the provision presently made under the will. 2. Order that: 1. the financial burden of Order 1 and the financial burden of the costs of these proceedings that are to be paid by the estate, shall be borne by all beneficiaries in their present proportions other than the plaintiff and the charities named in the will; and 2. the charities named in the will shall retain the full quantum of the benefits that each would have received under the will had the estate not had to bear the financial burden of Order 1 and the financial burden of the costs of these proceedings. 1. Order the defendant's costs to be paid out of the estate on the indemnity basis. 2. Order that the question of what orders should be made in respect of the plaintiff's costs of these proceedings be reserved. 3. Direct that the parties file and serve any evidence and written submissions (of no more than two pages) on the issue of appropriate orders concerning the plaintiff's costs by 5pm on Friday, 4 October 2019. 4. Direct the parties to file and serve submissions in reply (of no more than one page) in relation to the plaintiff's costs by 5pm on Friday 11 October 2019. 5. List these proceedings for mention at 9:30am on Friday 25 October 2019, or such other date as the parties arrange by agreement with my Associate. 6. Grant liberty to apply.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2019