The Estate of Gaber Ekladious Awad; The Estate of Ognee Abd Elkodious Mikheil

These reasons explain why the Court has declined in the Equity Duty List to refer litigants to the Bar Association or the Law Society for pro bono legal assistance pursuant to Uniform Civil Procedure Rules 2005, r 7.36 (“UCPR”). The applications are made by two of the parties to related probate proceedings (proceedings 2025/312914 – Estate of Gaber Awad, and proceedings 2025/312915 – Estate of Ognee Mikheil). The late Gaber Awad and the late Ognee Mikheil were husband and wife and were the parents of the several contestants in these two proceedings. Although both estates are in contest, the principal dispute presently before the Court appears to relate to the estate of the father and reference to that primary estate is made throughout these reasons.

In short, in the circumstances outlined below, the referral of these proceedings for pro bono legal assistance will not presently advance their resolution, or the administration of the estate and is not either in the interests of the parties or in the public interest, given the circumstances of this estate and the need to preserve the limited voluntary resources available from the Bar Association and the Law Society for pro bono legal assistance.

Gaber Awad (“the father”) and Ognee Mikheil (“the mother”) had four children, who are in order of age from oldest to youngest, a daughter Marciel (the third defendant), a daughter Nahed (the plaintiff), a son Emad (the first defendant) and a son Ragaie (the second defendant).

These proceedings took their current form when Nahed filed a motion to remove caveats that Emad and Ragiae had lodged against her applying for probate of any of the father’s wills. This motion came before the Probate List Judge Lindsay J in mid-September this year. Lindsay J has case managed the proceedings since then. Only the application for pro bono legal assistance came into the Duty List and became a contested sideshow. But first some general background.

The parties’ mother, Ognee Mikheil died on 9 July 2022 ostensibly leaving wills dated respectively 19 December 2017 and 22 August 2005. She appears to have given her estate to the parties’ father, Gaber Awad, who died on 7 October 2024 ostensibly leaving wills dated respectively 23 September 2022, 12 April 2019 and 23 August 2005.

Nahed propounds the 2022 will of the father which gives the whole of his estate to her. She says that her mother’s second will also substantially benefits her. The deceased’s eldest daughter Marciel, lives in Alexandria in Egypt, and has appeared in the proceedings by AVL but without legal representation. She says that when the deceased was travelling in the Middle East in mid-2019 to visit places holy to the Christian Church that he gave to her the will of April 2019 (“the 2019 will”), which he described to her as his “final will” and saying to her that he had executed it in Blacktown in Sydney.

The 2019 will directs that the deceased’s house in Blacktown should be divided equally among his four children, his two daughters and his two sons. The 2019 will appears to be partially deficient - it does not contain a complete clause disposing of the deceased’s residuary estate - although the facts available to the Court indicate that there is little in the deceased’s estate other than the Blacktown property.

Nahed’s propounding of the father’s 2022 will was thwarted by caveats that Emad has filed alleged that this will is invalid, forged, or fraudulent, or obtained by undue influence, presumably exercised by Nahed. Those will be the issues for trial in any later probate proceedings. Even if Nahed succeeds there is likely to be claims by the other siblings under Succession Act 2006, s 59.

The Blacktown property is an unoccupied freestanding dwelling in Blacktown, which is said by various parties to be worth in the range $950,000 to $1.3 million. Due to the distraction of the current probate conflict between the siblings the estate is incurring substantial liabilities. The Blacktown property is mortgaged to Aims Home Loans, with Perpetual Trustee Co Ltd acting as the mortgagee. The mortgage secures two loans apparently taken out by the father and the mother during their lifetimes – loan 111177 and loan 111410. Some of the siblings say that these mortgages were the result of unconscionable dealings in which late couple were in a position of special disadvantage. The Court is presently unable to make any judgment about the merits of this claim.

The statements of account for each of these loans from the mortgagee shows an alarming picture. Both loans are in default. Monthly default interest is being capitalised into the loans at an effective interest rate of 11.5%. The cost of this to the estate can be readily gauged from the mortgagee’s recent statements for both loans, which the Court ordered to be produced to assist it to assess what should happen with these pro bono referral applications.

As for loan 111177, on 24 July 2024 the outstanding balance due to the mortgagee was $157,586.49 and on 24 June 2025 was $177,270.61. Interest was being capitalised at the beginning of the last financial year at $1,525.24 per month and at the end of the financial year at $1702.43 per month.

As for loan 111410, on 24 July 2024 the outstanding balance due to the mortgagee was $112,238.08 and on 24 June 2025 was $125,858.71. Interest was being capitalised at the beginning of the last financial year at $1,088.43 per month and at the end of the financial year at $1208.70 per month.

The parties told Lindsay J in September and the Court at the hearing in the Duty List that the amount outstanding of the mortgage was only $20,513.52. Now that the default notices (the relevant objective evidence) are available that has turned out to be completely wrong and has resulted in the Court being misled. As at 30 June 2025 the amount outstanding on the mortgage in respect of the two loans was a total of $303,129.32 (being $125,858.71 plus $177,270.61), with total monthly default interest payments at that time being capitalised at the rate of $2,911.13.

The default financial position on both these loans can only have worsened in the four months that have elapsed since June this year. Interest is probably accumulating now at well over $3,000 per month on a gross debt of well over $320,000 and rising. The current equity in this property will be eroded during the parties’ current conflict unless something is done to stop default interest rising.

If the conflict in these proceedings is likely to drag on, there is a strong case for the Blacktown property either to be leased, or for it to be sold and the proceeds invested, so that the assets of the estate are preserved and if possible enhanced while the conflict continues. This seems to have been overlooked by these parties in their bitter succession rivalries.

As to the choice between leasing or sale of the Blacktown property, as result of the Court’s directions during the contest in the Duty List, Nahed has filed an affidavit which indicates that she has expended funds to prepare the property for a possible rental and obtained a current estimated market rent for the property of $680 per week (or $2720 per month) before deduction of rental expenses. This rental estimate can be disputed but the true figure is unlikely to be far above this estimate. It can now be seen that without a further injection of funds into the estate, leasing the property is not viable with accumulating default interest exceeding available rental income by at least $300 per month. Given the nature of the conflicts between these parties and the time they will take to resolve, it is clearly in the interest of preserving the assets in this estate for the Blacktown property to be sold. The only other realistic alternative is for Nahed, who claims the whole of the Blacktown property passes to her under the 2022 will, to advance substantial funds to the estate to reduce the mortgage so that renting the Blacktown property is viable. But her affidavit of assets is not consistent with any capacity to support the estate in that way. She says that

It is evident from Lindsay J’s orders and notations in the Court record that the level of conflict within this estate has reached the point that Lindsay J has been prompted to suggest that the proceedings might be better dealt with and the estate better managed by the appointment of an independent administrator, although Lindsay J has not yet taken that course.

Given the additional knowledge about this estate that is now available and is recorded this judgment, the Court has decided to require the parties to refocus on the prescient warnings given by Lindsay J and now to require the parties to show cause why an independent administrator should not be appointed to administer the estate. An independent administrator will facilitate objective communication with Marciel in Egypt, so that she has proper information to protect her legal interests in the melee of these Australian warring parties.

That then leads back to the question of the referral for pro bono assistance which is being sought by each of Nahed and Emad. Nahed originally brought her application in the duty list before Brereton J who granted it but on the basis it was revocable, if one of the other parties objected. Emad objected and says that if Nahed is referred for pro bono legal assistance then he should also be so referred and afforded the same opportunity on the grounds of “parity and procedural fairness”. He says he will accept the present situation that all parties are unrepresented if Nahed is not referred for assistance. Nahed claims she has only limited finances, owning an old motor vehicle, some jewellery and no real estate and that her only income is Centrelink benefits from which she pays for her public housing residents with Home NSW. The financial position of the other siblings is obscure.

The Court has had an opportunity to assess each of Nahed and Emad, even in the limited contact it has had with them both across the bar table. Each of them appears to have energy to robustly advance her and his self-interest in the public environment of the courtroom. Among the many bitterly fought contests that the Court sees in its probate jurisdiction, this case is being conducted with uncommon aggression on both sides. In this background of unusually heightened conflict the Court judges cautiously both Nahed’s estimates of her financial positions and claims to entitlement to pro bono assistance, notwithstanding that they have not been challenged under cross examination.

The pro bono referral scheme established between the Court and the professional associations of the Bar Association and the Law Society under UCPR r 7.36 is not an unlimited resource. The scheme only works because generous members of the legal profession in this State are prepared to commit their time without charge to fill the gap in the wholly inadequate legal aid provided by State and Federal Governments to members of the community. If the Court were to refer litigants who have financial resources to the pro bono scheme that would undermine the scheme by overburdening it and by deterring lawyers from offering their services free of charge because the lawyers cannot be sure that scheme members are truly deserving. The Court cannot of course infer that Nahed has substantial assets. But in the circumstances the Court is not prepared to infer that she lacks sufficient assets to engage a lawyer to represent her. She has at least a prima facie claim to a one quarter share in an estate, and potentially more, which estate would appear to have a total net value of perhaps about $600,000 to $900,000, if managed acceptably. Given there is so little evidence of the financial position of Marciel, Emad, and Regaie, they cannot be referred for pro bono assistance on any basis of “parity”.

Moreover, for a self-represented litigant, Nahed appears to be well capable of gathering evidence, swearing detailed relevant affidavits and advancing and defending her rights with a capable appreciation of the relevant legal principles, and applicable legal rules.

And any pro bono assistance to these two parties is unlikely to address the real issue bearing down upon them, which is the problem of the diminishing asset of the estate. Appointing a pro bono barrister to assist one or both of these parties is unlikely, on its own to assist the beneficiaries to administer and preserve estate assets.

What is to be done? The Court is not yet prepared to burden the pro bono system of the Law Society and the Bar Association established under UCPR r 7.36 with these two applications.

The Court will recommend however that Nahed and Emad be referred to the Bar Association and the Law Society by the Registrar in Equity with a copy of these reasons, to see if a lawyer might act for them, not on a pro bono basis but at reduced or favourable rates. This may well be a matter which would be handled by a junior barrister or solicitor in the early years of practice, who is prepared to wait for payment of legal fees when the estate is finally administered. These reasons have set out the basic facts and will be published which may facilitate such a limited referral. If the matter is taken up by a lawyer, an early mediation of the proceedings may be attractive.

The proceedings will be adjourned back to Lindsay J in the Probate List giving the parties approximately a week to absorb the implications of these reasons. Circumstances may change in the future. If the parties were for example to commit wholeheartedly to mediating these two proceedings quickly and submitted to an order under Civil Procedure Act 2005, s 26 for referral to mediation, the Court might perhaps reconsider a pro bono referral under UCPR, r 7.36. But even then, it is difficult to justify pro bono referral in probate proceedings such as these, where the parties are in contest over an identifiable fund.

These parties, like many others, should bear in mind that a pro bono referral under UCPR, r 7.36 is not the right of every litigant who claims to be impecunious but a matter in the discretion of the Court, depending upon the circumstances.

The Court therefore makes the following orders and directions.