Ibrahim v Nasr

1. [1]

   LEEMING JA: Ms Nejme Ibrahim, now aged 69, seeks order for provision under s 59 of the Succession Act 2006 (NSW) from the estate of her late husband, Mr Ishac Azar Nasr who died on 3 March 2018, aged 94. The two were married in July 2001 in Lebanon, and lived together in a modest single storey home in Campsie in Sydney, being the house in which the deceased, his first wife and eight of their nine children had lived when they arrived in Australia from Lebanon in 1977. The family was sponsored by the ninth child, who had married and settled in Melbourne.

2. [2]

   The children of the deceased’s first marriage are five sons and four daughters. Their names and ages by the time the proceedings came to trial are Eva (66), Azar (63), Yvonne (63), Malake also known as Elizabeth (61), Loretta (60), Clint (59), George (57), Antoine (54) and Hanna (52). Azar and Yvonne are twins. All four daughters Eva, Yvonne, Elizabeth and Loretta were cross-examined before me. So too were George, Clint and Hanna.

3. [3]

   Azar is unwell. At the time of trial, he was undergoing treatment for thyroid cancer and liver disease. There was lay evidence of his “longstanding mental health issues” and medical evidence that “both his physical and mental health are very unstable”. Most of his affidavit was read without his being required for cross-examination. Unlike the affidavits of his siblings, it does not contain serious allegations of misconduct against Nejme.

4. [4]

   Antoine is very unwell. He suffers from serious forms of mental illness. He was treated differently from the other siblings under the will. He has not to date been paid any distributions from the estate. His tutor commenced separate proceedings for provision, which were listed for hearing concurrently with Nejme’s claim, but which were settled by compromise approved on the first day of the hearing. During the course of the litigation he had had a foot amputated in circumstances consistent with extreme neglect, and it was said that that had led to an improvement of his conditions in social housing supported by the NDIS. During the hearing I expressed surprise that, given the terms of the will, the undoubted need of Antoine and the conditions in which he was living, the Campsie land had not hitherto been sold. I was told in response, correctly, that the manner in which the siblings had treated their brother was not in issue before me, and had it been in issue, they would have adduced evidence concerning their support for him. I accept that response.

5. [5]

   I shall refer to the deceased, the plaintiff and the children of the deceased’s first marriage by their given names. I do so for concision, conveying neither familiarity nor disrespect. From time to time both counsel made reference to “the siblings”, by which they meant the seven siblings Eva, Yvonne, Elizabeth, Loretta, Clint, George and Hanna who actively opposed Nejme’s claim. It was natural to do so, and from time to time I shall follow the same course, in describing attitudes and beliefs shared by each of those seven people.

The deceased’s will

1. [6]

   Ishac’s will was made in 2015. It was drafted by a solicitor. There is no issue as to his capacity, although he was then aged 92. Clause 2 appointed George and Clint as executors and trustees. Clause 3 is as follows.

2. [7]

   It will be noted that the children are enumerated with the five sons preceding the four daughters. It will also be noted that Nejme’s two year period of residence came to an end if she vacated the premises.

3. [8]

   Clause 4 addressed deceased’s real and personal property in Lebanon, identifying 4 particular properties in North Lebanon. The Lebanese property was to be divided into sevenths and fourteenths, with each of the five sons to receive a one seventh share, and each of the four daughters to receive a one fourteenth share. A recurring theme in the evidence was the unequal treatment of men and women in a family all members of which had been born in Lebanon. A similar will was considered in Khreich v NSW Trustee & Guardian [2012] NSWSC 1299 at [10]-[12].

4. [9]

   Clause 5 divided the net residue into tenths, to be distributed equally between Nejme and the nine siblings. The balance of the will was directed to establishing a trust for Antoine.

5. [10]

   It will be seen that under the will, Nejme received a right of residence for 2 years, and 10% of the Australian assets subject to $200,000 first being paid to Antoine.

6. [11]

   There was a deal of evidence bearing upon what was said to be an “arrangement” entered into at the time of Ishac’s and Nejme’s marriage to the effect that Nejme had no entitlement to Ishac’s estate. The significance of any such arrangement was disputed.

7. [12]

   There was uncontroversial evidence that it had been George and Clint who encouraged their father to make a will leaving property to Nejme. George said that Nejme had said to him and Clint “Make me one of the children”.

8. [13]

   Nejme was not present when the will was made. George gave evidence that Ishac said that he wanted to stick with the agreement that Nejme would inherit nothing. However, he said added “[a]fter some discussion between my father and Clint and me, my father changed his mind and the Plaintiff was included in his will”.

9. [14]

   The evidence disclosed three areas of misunderstanding concerning that clause.

   1. (1)

      First, some of the siblings contended that the two year right of residence did not give Nejme exclusive possession, notwithstanding her obligation to pay all rates and taxes, to keep the property insured and to maintain the property. I do not agree. Nejme and Ishac had lived as a couple in the house for the previous 17 years. The evidence does not suggest, save in the last three months of Ishac’s life when the siblings maintained a very substantial presence in the home after he was discharged from hospital, that anyone else had lived there for some years (true it is that George had stored some work materials on the premises, and had a key). The house was Nejme’s home. It was the only home she had known since leaving Lebanon. It was a modest single storey home of 4 bedrooms, 1 bathroom, external laundry and a detached garage. I think that background coupled with the unequivocal obligation to bear 100% of the burdens of rates, taxes, insurance and maintenance makes it plain that the occupation conferred by the will was exclusive. No submission to the contrary was made. Nonetheless, I accept that some of the siblings genuinely although wrongly believed they had an entitlement to call uninvited, including on one occasion to hold a large barbeque.

   2. (2)

      Secondly, the will required the property to be sold after the two year period, so that the distributions of $200,000 to Antoine and tenth shares of the balance might be made. The language of Ishac’s will is mandatory and unequivocal. The executors appear to have proceeded on the basis that they had a discretion. Clint said he had not appreciated the import of the clause (“I have to say that I overlooked that - that - that condition in the will, in all honesty”: T142.22). But the executors’ counsel made no submission to the contrary. I was told from the Bar table that in June 2020, when orders were made for Nejme to leave the property, a judge in the Equity Division was told that the house was to be sold (T294.35-47). There is no evidence of that before me. In closing submissions, their counsel supported a suggestion from me that, irrespective of the outcome of the application, bearing in mind the entitlements of Nejme and the nine siblings to benefit from the proceeds of sale, orders be made mandating the sale required by the will, by providing a period for that to occur in default of which application could be made for the appointment of trustees for sale or new executors: T350.4.

   3. (3)

      Thirdly, at least some of the siblings gave evidence suggesting a belief that Ishac had not wanted to give Nejme any rights to his estate at all. They blamed Clint and George for causing their father to execute the will which was admitted to probate. By way of example, Loretta said (T200.7):

   4. (4)

      But there was no challenge to the validity of the will.

10. [15]

    The evidence made it plain that Nejme’s period of occupation was fraught. There was no dispute that some of her step children attended at the home, including en masse, in the weeks before and after Ishac’s death. There seems to have been a regime whereby Yvonne would attend in the afternoon when a carer from Wesley Mission was leaving, and stay for an hour or so until Clint (or another sibling) arrived. Clint would spend the night in a recliner sharing a room with Ishac. During this time, Nejme slept in a separate room. Other members of the family attended, and were given what was described as “petrol money” and “money to Loretta”. This was said to amount to $6,000 and was claimed as an estate expense. The point was fairly clear: the siblings wished there to be no moment, day or night, when Nejme was alone with her husband. They said that this was necessary for his safety.

Overview of disputed issues of fact

1. [16]

   There were disputes as to whether physical damage was caused to the locks and windows on Nejme’s room. There was no dispute that Nejme obtained an ADVO against Loretta, although there was a dispute as to whether Loretta had in fact scratched Nejme’s neck. One of the COPS reports states that there was an interim order against each of Elizabeth and Loretta, and that was also Nejme’s uncontradicted evidence.

2. [17]

   The siblings advanced a variety of claims of mistreatment of Ishac by Nejme. These included failing to ensure that the oxygen was properly placed in his nostrils, failing to feed and care for him and feigning illness in December 2017 so as to avoid her duties. There were also claims of active misconduct, including theft and attempted murder, which will be elaborated below. There was also an undercurrent of witchcraft. Facebook posts described Nejme as “evil” and a “wicked witch”, and Hanna gave evidence that on around 8 February 2018, Clint asked Nejme in his presence “Have you been using witchcraft on my father?”, to which she replied “But you don’t believe in that stuff”, and to which Hanna said “We don’t, but the fact that you do and you did it greatly concerns us”.

The role of contemporaneous documents

1. [18]

   Not all of these disputes need be resolved, and in large measure the evidence bearing upon them is the competing testimony of the witnesses. However there were a few contemporaneous documents bearing on these disputes. It is convenient to address these at the outset. Usually the rational resolution of an issue involving the credibility of witnesses will require reference to, an analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation, as Keane JA observed in Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], and which has regularly been followed: see for example Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [25], [116], [118].

2. [19]

   The contemporaneous documents fall into two categories.

3. [20]

   First, and a little unusually, both sides tendered COPS records of complaints made by Nejme on the one hand, and Clint and George on the other hand, of misconduct by the other side. Both sides proceeded on the basis that the records were accurate albeit hearsay statements of what had been said to police officers, and of what police officers had seen when, repeatedly, they attended the property. It is not unlikely that if objection had been taken, they were largely or wholly inadmissible (cf Averkin v Insurance Australia Ltd (2016) 92 NSWLR 68; [2016] NSWCA 122), but as it turned out both sought to deploy different records for their own purposes, and in a trial which was replete with conflicting testimony and decidedly light on documents, it may be that both sides adopted a pragmatic course of dispensing with the hearsay rule.

4. [21]

   The COPS records although admitted without objection need to be treated cautiously. I proceed on the basis adopted by the parties, that they represent genuine (although not infallible) efforts to record what was being claimed by a partisan complainant, and what the police officers saw.

5. [22]

   The documents suggest that Clint and George threatened, on the day of their father’s death, to evict Nejme from the property. They imply, and I did not understand there to have been any dispute at trial, that each of Nejme, Clint and George contacted the police within 24 hours of Ishac’s death.

6. [23]

   A COPS record suggests that Nejme called the police at around 16:56 on 3 March 2018. Nejme is the informant or “INFT”. The record states:

7. [24]

   Nejme was cross-examined on the police officer’s record without objection. She denied calling the police on the afternoon her husband died to make a complaint that Ishac had been verbally abusing her and threatening to kick her out. One possibility is that something has gone awry in the record of Nejme’s call, because there is no doubt that on that day her husband had died and her stepson had been verbally abusing her and threatening to kick her out, and there is no reason to complain after her husband’s death that he had been threatening her.

8. [25]

   On the other hand, Clint gave evidence that he heard his father, on 3 March 2018, telling Elizabeth that “she killed me” (meaning Nejme) and that his father than turned to Nejme and said “Go from here leave me alone, leave the house. You killed me”.

9. [26]

   The document continues with the events later that afternoon, although it appears that Clint is the “VIC” and Nejme is the “PN” (it possible that Clint called the police; it is also possible that the record is inaccurate and the references to VIC and PN should be transposed; nothing turns on this):

10. [27]

    The report stated that no party alleged there had been any physical violence.

11. [28]

    On the morning of Sunday 4 March 2018, either Clint or George attended Campsie Police station “to report that he believes [Nejme] attempted to end his Fathers life (the deceased) several times before his death on the 3rd of March 2018”. The entry in the COPS report states that Clint provided to the police 5 pages of notes concerning a claim that Nejme had moved the oxygen tubes, 7 coloured photographs and an emergency department discharge of 18 February 2018 which mentions “Shortness of Breath”; there is other evidence suggesting that George did so on behalf of Clint (once again, nothing turns on this). The COPS record continues:

12. [29]

    There was no dispute that a dossier such as that mentioned was provided, within 24 hours of Ishac’s death, nor that it included recordings made by Clint from a concealed device. Clint confirmed in cross-examination that he had placed an initial hidden camera in a clock radio in around late January 2018, upgrading it with a more expensive and effective one on around 8 or 9 February. The device also recorded sound. I issued a certificate under s 128 of the Evidence Act 1995 (NSW) applying to Clint’s evidence concerning the covert recording of conversations between the deceased and Nejme. It should be added immediately that Clint maintained there was nothing unlawful, because he installed the device with the consent of his father and in a way which was necessary to protect his father’s interests. It is not necessary for me to express a view as to the lawfulness of what occurred, because the audio and video recording, and a translation of the former, were tendered without objection (the defendants’ apprehension that an objection based on s 138 of the Evidence Act might be made proved to be unfounded). I note only that s 7 of the Surveillance Devices Act 2007 (NSW) draws a distinction between covertly recording a private conversation to which the person doing so is a party, and covertly recording a private conversation between other persons, with the exceptions in s 7(3) applying to the former and not the latter.

13. [30]

    The second category of contemporaneous documents bearing upon the conduct of Nejme and the siblings towards each other were social media posts made under Clint’s name in the weeks and months after his father’s death. They do not directly disclose what occurred prior to Ishac’s death. However, they do tend to corroborate Nejme’s evidence to the effect that she was poorly treated by the siblings. They convey an animus against Nejme which is wholly consistent with an intention to cause her to feel threatened and, ideally, to vacate the premises.

14. [31]

    On 1 April 2018, just less than 4 weeks after the funeral, a posting was made on Clint’s Facebook account:

15. [32]

    On 10 May 2018 there is the following post:

16. [33]

    On 28 June 2018, another posting was made. It comprises 4 paragraphs in Arabic followed by the following three paragraphs in English.

17. [34]

    It purports to include words said by Nejme, secretly recorded by Clint sometime after late January 2018. No such recording was placed in evidence. However, it supports the propositions that:

    1. (1)

       while Ishac was dying in his last days, she was being blamed for interfering with the oxygen supply, and

    2. (2)

       Nejme was maintaining, even when being secretly recorded, that she was attempting to preserve her husband’s life, rather than accelerate his death.

18. [35]

    On 6 July 2018, the following post was made to Clint’s account:

19. [36]

    On 10 July 2018, the account posted:

20. [37]

    Four paragraphs in Arabic, the words “THE BLACK WIDOW” in English, another paragraph in Arabic and a photograph of Nejme followed. To be clear about this, I did not understand that any digital file was posted to Facebook with a sound recording containing Nejme saying that she had killed her husband. No such submission was made, and I am quite certain that if Nejme had been recorded saying that, the Court would have been told about it. Rather, the gravamen of the post is that the author is attributing those words to a picture of a middle aged woman walking in her house.

21. [38]

    The Arabic text after “Grim Reaper” and “Black widow” in the Facebook posts in evidence is precisely the Arabic which is presented by “Google Translate” as the translations for those words (“hafah al’arwah” and “alarmilat alsawda’”).

22. [39]

    On 20 July 2018, a posting was made on Clint’s account as follows:

23. [40]

    Finally, on 5 January 2019 (the year is not reproduced, but the preceding post was dated 22 December 2018), there was the following post:

24. [41]

    Clint was cross-examined on these social media posts, and extensive submissions were made about them, to which I shall return. For present purposes, I note only that they are consistent with Nejme’s evidence that she was treated poorly by the siblings while she lived in the property after her husband had died.

25. [42]

    Nejme said that she paid the rates on the Campsie property, and had documents to prove it, although they were not tendered. The executors pointed to a Local Court statement of claim asserting a claim for those rates against the executors, and a written agreement reflecting the payment of the debt by instalments of $250 per month. Clint also pointed to utility bills that he had paid.

26. [43]

    Nejme stayed in the property until mid 2020, when she left in accordance with a regime ordered by the Court, which included an interim distribution of $38,000 from the estate.

27. [44]

    The treatment of Nejme by the executors and their siblings during the 2 years following Ishac’s death is important. It may well be that Nejme was herself in part to blame in escalating conflict so that the police were, repeatedly, involved; things in real life are seldom crisply black and white. But an important part of the provision made for Nejme under Ishac’s will was her residence in the family home for 2 years, after which it was to be sold and she to receive 10% of the proceeds. During the two years after Ishac’s death, Nejme did not enjoy quiet uninterrupted possession.

28. [45]

    Further, Nejme has not received 10% of the proceeds of sale under the will. At least part of the delay is attributable to the executors. Their duty was to sell the property in accordance with Ishac’s wishes. Further, and somewhat remarkably, the executors took steps to delay the hearing of Nejme’s application, including seeking and obtaining a four month adjournment (from October 2019 until February 2020) while, so it was said, allegations of Nejme’s criminality could be investigated by the police or the coroner.

The value of the estate

1. [46]

   In the months prior to the trial, the executors maintained that the property was worth $1.25 million. In the week prior to trial, Clint contended that in fact the property was worth $1.2m in light of its disrepair. That was based on a market appraisal dated 10 September 2021. The estate agent was of the view in light of the structural damage to the building, the property was “valued for its land only”.

2. [47]

   A structural engineer’s report dated October 2019 said that many of the timber bearers and joists were badly damaged, such that the property was “currently not suitable for occupation”.

3. [48]

   The unlikelihood of Sydney real estate diminishing in value over the period 2019-2021 prompted (I infer) Nejme’s solicitor serving a market appraisal of $1.75m shortly before the trial, which I admitted notwithstanding its lateness over the executors’ objection. This in turn (I infer) prompted a valuation from the executors by a valuer, who produced a full report based on comparables on the 4th day of the trial, valuing the land at $1.675m. That valuation had regard to the structural engineer’s report and stated that the house was in a defective state of repair, largely due to severe termite damage.

4. [49]

   I accept $1.675m as the best evidence of the value of the land. The valuer’s evidence was unchallenged. The opinion was supported by reasoning. His methodology was based on an adjustment to the realised per square metre achieved by what was regarded as a comparable nearby property with the same zoning. It is a little remarkable that the value attributed by the executors to the major asset in the estate appreciated by about half a million dollars, or more than 30%, over the course of the five day trial, but it was not put to either executor that there was anything untoward in that development, or that they had not genuinely believed that the property was worth only $1.2 million when that amount was propounded by them.

5. [50]

   There is some real property in Lebanon. It falls into two categories.

6. [51]

   First, there are the four properties identified in the will. Clint gave evidence that these were for practical purposes valueless, and reflected shares in remote unsubdivided property inherited by Ishac. I accept his evidence on this topic. It was uncontradicted, and inherently plausible.

7. [52]

   Secondly, there was the house where Ishac and Nejme would stay when they visited annually. The executors say that this is valued at $130,000, and they have spent a great deal of money on its repair. This contrasts with the disrepair of the Campsie home. Nejme questioned the appropriateness of this expenditure. I shall return to this.

8. [53]

   The executors obtained $84,792.45 from the deceased’s bank account at the time of death. Further, in the days before his death, $35,000 was withdrawn from the same account (in amounts of $10,000, $15,000 and $10,000). It seems uncontroversial that the deceased had authorised $50,000 to be spent on his funeral and related remembrance ceremonies.

9. [54]

   The executors also obtained $53,000 in banknotes at Campsie. They claim that Nejme stole $49,000 in cash, a point to which I shall return.

10. [55]

    The executors also say they found 20,000,000 old Lebanese pounds, which they exchanged for some AUD$17,000. Nejme maintains that in fact there were at least 100,000,000 old Lebanese pounds (in her affidavits she said there were 163,000,000 old Lebanese pounds). This was denied by Clint and Elizabeth. No other sibling was asked about the Lebanese currency. A document supplied in a late affidavit from Clint confirmed that he had taken 20,000,000 Lebanese pounds out of Australia on 13 September 2018. I find that there were 20,000,000 old Lebanese pounds, and not the larger quantities to which Nejme’ attested. In relation to this issue of fact, where Nejme’s evidence is based on recollection, and could very readily be incorrect, I prefer the evidence of the executors supported as it is by a document whose authenticity is unchallenged. I have adopted the same approach in relation to whether Nejme paid the rates on the Campsie property after Ishac’s death.

11. [56]

    Nejme points to some assets within the notional estate. Her opening submissions identified $70,000 described as “monies used by Executors for ‘resolving historical title issue for property in Lebanon’”, and up to $163,270 of funds used to repair the property in Lebanon. The matter was not returned to in closing submissions. As will be seen below, it is unnecessary on the view I take to resolve this.

12. [57]

    All of the money in Ishac’s bank accounts and, it seems, the cash found at his home has been used to pay what the executors claim to be estate debts. Some of the expenses are unremarkable – rates, expenses related to the care given to the deceased at the end of his life, and expenses concerning the Campsie land and the cost of probate. The funeral and burial expenses have been large. The Australian services were $57,050 (including a catering bill in excess of $20,000), to which must be added $13,250 attributed to a memorial service in Lebanon. I accept that the process of commemorating the passing of a life in the culture in which all witnesses were located was and is very important, and I intend to convey no implied criticism in stating those amounts. However, it does mean that the exclusion of Nejme from the funeral service – attended by a community which would have known her as Ishac’s wife of 17 years – was especially harsh. Further, despite the executors spending in excess of $70,000, they have not as yet altered the parents’ tombstone (Ishac is buried next to his first wife), 3½ years after Ishac’s death, and there is an estimated liability of $18,000 for that expense. The reasons for this were not exposed in the evidence (I accept that there may be very valid reasons).

13. [58]

    The executors say that (precisely) $4,800 in so-called “petrol money” was paid to members of the family who stayed with the deceased in his and Nejme’s home in the final 3 months, and another $1,200 in “money to Loretta”. The amounts are small in one sense, although on the other hand it is difficult to reconcile the grudging evidence of some family members that Nejme was receiving a supplement to her pension of $70 per week as a primary carer, including over Ishac’s 63 day hospitalisation and the last 3 months of his life, while much greater amounts of cash were given to the siblings from the banknotes stored by Ishac in his home.

14. [59]

    On the first day of the hearing, I approved the settlement of Antoine’s claim. The settlement was (simplifying slightly) for $300,000 plus 10% of the proceeds of sale of the Campsie land (after deducting the $300,000) plus a very modest amount representing 1/7 of the property in Lebanon, plus his costs on an indemnity basis. In very general terms, that is $100,000 over and above what he was to receive under Ishac’s will. The executors quantified the liability reflected by those orders as some $402,000 plus costs of $122,000. (When on the final day of the hearing, Antoine’s solicitors quantified his costs, Nejme expressed concern as to whether the costs should be $122,000 or closer to $70,000, reflecting the basis on which her counsel had understood the settlement proceeded. It will be a matter for those administering the estate to assess whether the costs fairly recoverable for the work done on Antoine’s behalf are reflected in the amount rendered, which probably does not at present include any breakdown of the way in which those costs have been calculated.)

15. [60]

    Nejme’s costs are in the order of $160,000, but they include preparing for and conducting a five day hearing. The executors say their costs are some $225,000. Thus the melancholy fact is that in the order of $500,000 has been spent on legal fees in disputing an estate which comprised not too much more than a modest suburban home, albeit one on a fairly large block in an area now zoned R4 as suitable for a much higher density of residential living than when it was built.

16. [61]

    The executors’ costs seem on the high side, having regard to the need to run the proceedings “with a keen eye to the minimisation of costs at all stages” to which Allsop P referred in Tchadovitch v Tchadovitch (2010) 79 NSWLR 491; [2010] NSWCA 316 at [3]. True it is that there are a very large number of affidavits (at least 37), but the majority are very short affidavits by lay persons or indeed by a solicitor. Many paragraphs of most affidavits are inadmissible, or barely admissible. However, both sides adopted a position consistent with their treatment of the COPS reports of not taking objections to the affidavits’ admissibility, but letting all of the affidavits be read without objection, leaving it to me to treat with appropriate caution the inadmissible and the barely admissible. I acquiesced in that course, which as it happened enabled the trial to be completed in the five days allocated, which might well not have occurred if a more formal approach had been adopted.

17. [62]

    As will become apparent if it is not apparent from the foregoing, I have some concerns about aspects of the administration of this deceased estate. In order to resolve the present application, most of the matters referred to above need not be resolved, and the views I have expressed above are necessarily tentative and preliminary. For present purposes, it will suffice to proceed on the basis advanced by the executors, which is to conclude that the net distributable estate, allowing for the settlement of Antoine’s claim, the costs of this litigation, and the totality of the expenses claimed by the executors (including the cost of selling the Campsie property), is in the order of $917,000. That is derived from the $917,835 calculated on the last day of the hearing following receipt of Antoine’s solicitor’s estimate of costs (T325.11). That conclusion is favourable to the executors.

18. [63]

    I do not think that it is necessary, in order to exercise the discretion under the Act, to have identified with precision what the distributable assets of the deceased estate are. Attempts at precision are illusory. For example, the actual amount of the proceeds of sale of the Campsie property distributed under the will will turn on the sale price achieved, and that is far more likely to be less than, or greater than, $1.675m than precisely that amount.

19. [64]

    In the present case, it is necessary to know the general order of assets likely to be available for distribution, but a greater level of approximation will suffice than it might in other cases. That will not be so in every case, but in the present case it is significant that there are eight other beneficiaries’ claims to the distributable estate aside from Nejme. If Nejme is awarded provision over and above her entitlement under the will, it will be borne pro rata by eight siblings (excluding Antoine, whose entitlement is fixed by the settlement of his claim). By way of example, if Nejme and the eight siblings excluding Antoine were each entitled to $100,000, but the Court made provision in favour of Nejme in the amount of $300,000, the burden would be borne by each of the eight siblings receiving $25,000 less, or $75,000. That is not to deny that any order for provision pro tanto detracts from the testator’s wishes embodied in the will, and the expectations of beneficiaries under that will.

20. [65]

    There may be some notional estate, but it is small in the scheme of things. It may be that some of the expenses and liabilities upon the estate are not allowable, but once again I do not think it is necessary to resolve those issues in order to assess Nejme’s claim for provision. The most important integers are the likely proceeds of sale of the Campsie house, the cost to the estate of the settlement with Antoine, and the costs incurred by the executors.

The financial position of the other beneficiaries

1. [66]

   The needs of the siblings who were cross-examined are those of people in their 50s or 60s, with the prospect of the age pension and an increase in medical expenses. Some are much better off than others. All are better off than Nejme. The siblings have had the benefit of living in Australia since 1977. All speak English.

2. [67]

   Antoine receives benefits under the NDIS, together with the settlement of his claim mentioned above.

3. [68]

   Most of the other siblings have, very much to their credit considering all arrived in Australia as children or young adults in 1977, acquired interests in residential property which makes their future stable. Their evidence is that their net asset position was George: $5,000; Eva: -$5,500; Azar: $1,043,000; Yvonne: $1,697,000; Elizabeth: $1,021,000; Loretta: $774,000; Clint: $2,833,000 and Hanna: $3,960,000. Clint and Hanna own investment properties. George’s home is substantially mortgaged.

4. [69]

   Eva, and to a lesser extent George, is an exception in this respect. Eva receives the aged pension and has very few assets. George and his wife own a home, subject to a mortgage, but he has other debts and COVID-related disruptions to his business. The other siblings appear to be quite secure in terms of owning their homes, and some have acquired substantial additional assets. If one added the assets of the siblings and of the deceased estate, the family which arrived in 1977 fleeing a war zone had accumulated in the order of $12,000,000 of wealth, mostly represented by Sydney real estate.

5. [70]

   Nejme has lived in Australia for twenty years, after spending the first 49 years of her life in Lebanon. She claimed to be unable to read or write Arabic or English, and no contrary proposition was put to her. She claimed to be unable to speak English. The COPS reports suggest that she has some English, but not much. She has never had paid employment. She has been paid a pension including a carer’s allowance for her husband.

6. [71]

   Nejme claims that she has no assets, and survives on the pension with assistance from occasional loans from a brother. She rents a flat in Punchbowl which is not suitable for her but at $300 per week rent it is all she can afford. She is not in a relationship. She has monthly expenses of $400 (groceries), $15 (electricity), $80 (internet), $130 (mobile) and medicine of $100. She takes Nexium, Crestor, Clopidogrel, Ostemol and Minax. She was not challenged in her evidence in chief that:

7. [72]

   Nejme says she was a wife for 17 years. She seeks an amount in the order of $600,000 to acquire a modest apartment, and a further amount of $50,000 for basic items of furniture and whitegoods.

8. [73]

   Nejme also says that Clint, George, Loretta, Eva, Elizabeth, Yvonne and Hanna have behaved “reprehensibly” in the period since late 2017 when Ishac became very unwell to date and that the Court should have regard to this pursuant to s 60(2)(n).

9. [74]

   The executors say that Ishac’s will makes adequate provision for Nejme. They say that she made limited contributions to the estate, and there was limited financial dependency of Nejme upon the deceased. Most seriously, they say (in a document I asked to be provided in final submissions identifying the factual findings each side asked the Court to make) that:

   1. (1)

      Nejme and Ishac married on the basis of an “arrangement” that she would inherit none of his estate;

   2. (2)

      “[Nejme] did not provide the level of care and support to the deceased that she alleges”;

   3. (3)

      “[Nejme] retained up to $49,000 in cash from the deceased”, and

   4. (4)

      “[Nejme] conducted herself improperly towards the deceased, in failing to provide the level [of] care expected, arguing with the deceased, and on [2] February 2018 mistreated the deceased in his dying days: Exhibit CN-4, video.”

10. [75]

    I shall return to the evidence bearing upon these matters, and my findings on them, in due course. It is convenient to note three matters immediately.

    1. (1)

       The second point is poorly framed. Nejme was 67 in the final months of Ishac’s life. She was not trained as a nurse, and she was of an age when most nurses have retired. She nonetheless said she did everything she could for her husband, by way of feeding and tending to him at home and in hospital. The executors dispute this. They make serious allegations of positive mistreatment to which I shall turn.

    2. (2)

       The third and fourth points are allegations of serious criminality. The executors do not have to establish these matters beyond reasonable doubt, but they attract the principles associated with Briginshaw v Briginshaw and s 140 of the Evidence Act. Notwithstanding the seriousness of the allegations, the executors disclaimed any submission based on disentitling conduct (T334.13).

    3. (3)

       In light of the evidence some of which has already been mentioned, I note that the executors did not ask me to find that Nejme had attempted to kill Ishac, or to shorten his life. They also accepted that Nejme did not feign illness in December 2017 in order to avoid tending to Ishac’s needs (T340.6).

11. [76]

    In large measure, the matters of fact which Nejme asked me to find are the converse of the points raised by the executors. She adds three additional matters: “contribution of the defendants toward the deceased’s assets and the deceased’s care”, “the level of the plaintiff’s need in relation to other beneficiaries”, and the conduct of the children.

Overview of chronology

1. [77]

   The following is derived from documents, or testimonial evidence given orally which appeared to be uncontroversial.

2. [78]

   The Nasr family had lived in Assoun, where Ishac worked as a professional beekeeper. The oldest daughter Eva married in 1975 and moved to Melbourne. She sponsored her parents and siblings to migrate to Australia in 1977, as part of the wave of people escaping the civil war. The parents bought a house in Campsie shortly after, borrowing $10,000 from an uncle and $27,000 from a bank. The children adhered to their cultural tradition and made contributions to the repayment of the loans and the refurbishment of the house. Most of the children obtained employment. Ishac never worked in paid employment. He tended some bees, and there is some suggestion that he sold some of the honey. For the ensuing 41 years, his principal income was from social security. Ishac’s first wife Najla died in around 1989.

3. [79]

   Relevantly for the purposes of this proceeding, it is convenient to refer to three periods:

   1. (1)

      the large majority of Nejme’s and Ishac’s marriage, from 2001 until the latter fell ill in around August 2017;

   2. (2)

      the period from August 2017 until Ishac’s death on 3 March 2018, and

   3. (3)

      the period thereafter.

4. [80]

   Nejme and Ishac were married in the village of El Hemayre in the province of Akkar in Lebanon on 22 July 2001. The certificate recorded that Ishac’s local registry office was Assoun, while Nejme’s local registry office was El Hemayre. Both were described as Greek Orthodox. The marriage was celebrated in the presence of a priest and two patriarchs. Nejme also said that the whole village was present, but that there was no party. Ishac’s children did not attend.

5. [81]

   The couple lived in the Campsie home from August 2001 until Ishac’s death on 3 March 2018.

6. [82]

   The evidence discloses very little of Nejme’s life before 2001. She has a brother who lives in Melbourne. Cross-examination established that she was one of five sisters and two brothers. Two of her sisters had died. She had never worked and earned and income. Her father died in 1974, her mother in 2006. She had lived in the family home, but “[i]n Lebanon there is nothing under [her mother’s] name” (T28.11). One of her brothers still lives in the home. When Nejme returned to Lebanon (as she did, annually, after her marriage), she stayed with her brothers and sisters (T28.48). Of the monies she received by way of interim distribution, she “had to withdraw them to pay debts that I had” (T28.46).

7. [83]

   Nejme and Ishac travelled to Lebanon annually. In around July or August 2017, Ishac felt unwell. He did not attend a doctor in Lebanon.

8. [84]

   Shortly after the couple’s return to Australia in September 2017, Ishac spent 63 days in Royal Prince Alfred hospital, where he was diagnosed with cancer. Yvonne’s evidence is that this was from 25 September 2017 until 22 November 2017. Nejme says she visited her husband every day he was in hospital, and slept there on nine nights. There is a minor dispute as to this, concerning whether Nejme visited every day or merely most days.

9. [85]

   After Ishac was discharged, Nejme herself spent 16 days in hospital where she underwent two operations. The siblings maintained that she should have been home caring for Ishac. No documents were tendered relating to this.

10. [86]

    Most of the evidence in the trial related to the period from late December 2017 until Ishac’s death on 3 March 2018. It is important to bear in mind that those last ten weeks were less than 2% of a long marriage.

11. [87]

    For most of the last weeks of his life, Ishac was living in the Campsie property. He was taken to hospital occasionally. Nejme said this often happened on weekends, after visiting medical practitioners had attended to him on Fridays. There is a reference to the fact that the police were provided with a form disclosing Ishac’s discharge from Canterbury Hospital on 18 February 2018 (see Exhibit A p 1); it is unclear how long he was in that hospital or the reason for his admission.

12. [88]

    There was also unchallenged evidence that the siblings installed Ishac in a nursing home between 8 and 10 January 2018. He was very unhappy there, and returned to the Campsie home after 3 days.

13. [89]

    On 3 March 2018, Ishac was taken from Campsie by ambulance. He died. Nejme was not permitted to attend the hospital.

14. [90]

    In the late afternoon of 3 March 2018, the police were called to the Campsie property. There was conflicting evidence about the altercation. The COPS records made by attending police are summarised above.

15. [91]

    On 4 March 2018, Campsie police station was provided with notes, photographs and video evidence prepared by Clint presenting a case that Nejme sought to accelerate Ishac’s death.

16. [92]

    Ishac was buried on 6 March 2018. Nejme did not attend the funeral.

17. [93]

    On around 8 May 2018, Nejme made a complaint concerning a barbeque held at the Campsie property by Clint, George, Loretta, Elizabeth and others. Loretta tells investigating police that she was there but did not see Nejme and was conscious of the terms of the ADVO then binding upon her. Although the COPS record refers to a signed statement by Nejme, that was not in evidence. The police record refers to allegations made by Nejme, which Clint disputed, in part on the basis that Nejme was a “habitual liar”, and also to observations by the police themselves. The latter included:

18. [94]

    The note records “The door of [Nejme’s] bedroom handle is damaged. The window in [Nejme’s] bedroom has also been smashed.”

19. [95]

    Nejme gave evidence in her affidavit sworn 31 August 2021 as follows:

20. [96]

    Nejme gave further evidence in that affidavit of the siblings locking doors of the house, breaking locks she had installed, installing surveillance cameras, and calling her names (principally, an Arabic word translated as “slut”).

21. [97]

    Clint made a reply to Nejme’s affidavit of 31 August, but it did not address any of the matters in the previous two paragraphs.

The litigation

1. [98]

   This proceeding was commenced on 1 March 2019, within the 12 months specified by s 58(2) of the Act. Plainly Nejme is an eligible person as Ishac’s spouse at the time of his death. The threshold issue is that posed by s 59(1)(c), namely, whether the Court is satisfied that:

2. [99]

   If so satisfied, then s 59(2) confers power to make an order for provision out of Ishac’s deceased estate “as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”.

3. [100]

   In determining whether the adequate provision for the purposes of s 59(1)(c) has been made, and if it has not, in making an order for provision, the Court is entitled to consider the matters in s 60(2), which include “any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered”: s 60(2)(p).

4. [101]

   The administration of the estate and the conduct of these proceedings are relevant. In particular, it may be noted that:

   1. (1)

      while Nejme resided in the Campsie home for somewhat longer than the 2 years for which Ishac’s will provided, she did not pay rates, but her time there was interrupted by incursions from some of the siblings;

   2. (2)

      Nejme vacated the premises by August 2020, and at the same time received an interim distribution of $38,000;

   3. (3)

      the litigation has progressed slowly, in part because the executors applied in mid 2019 for a stay pending another attempt to have the police or the coroner investigate whether Nejme had accelerated Ishac’s death.

Conflicts in the testimonial evidence

1. [102]

   A recurring theme in the testimonial evidence was that Nejme as the wife should have been doing menial tasks caring for her husband, and was not doing them adequately. There was something of a focus on food, with evidence being given as to Nejme’s feeding Ishac of Asian food left over from a neighbour, which was said not to have been good for him, and of Nejme herself consuming the food provided for their father by some of his daughters and daughters in law. And a number of witnesses gave evidence of hospital food which they found when cleaning the Campsie house (quite possibly when Nejme was herself in hospital). This in turn was linked to the suggestion that Nejme was involved in causing Ishac to go hungry.

2. [103]

   It is convenient to summarise the details of one aspect of this immediately. Ishac’s daughter-in-law (Joumana) gave this evidence:

3. [104]

   There was a deal of evidence directed to the food taken from the hospital. Clint took a picture of food discovered while cleaning out the home shortly after his father returned from hospital. He took a photograph of it. Paragraph 66 of his affidavit of 6 September 2019 describes the food as “a large quantity of pre-packaged patient food” and annexes a photograph of “the food”. It is clear from the evidence of other family members that they had been shown this picture.

4. [105]

   The picture shows one small carton of yoghurt, two small packets of cheese, two small bowls of fruit salad, six packets each containing one or perhaps two dry crackers, ten individual servings of canola margarine, a small packet of tartare sauce, two sweets, and another item I cannot identify.

5. [106]

   They are less insignificant than they might seem.

   1. (1)

      They speak of a woman used to adversity, who had lived through the same civil war which caused her husband and eight of his children to flee to Australia, who did not wish to see waste, and saw an advantage in having stores of food in the home.

   2. (2)

      They are wholly consistent with the evidence that the deceased would “go short”, was frugal and hated waste.

   3. (3)

      Contrary to the evidence of some of the witnesses, the photograph does not support the proposition that Nejme somehow starved a dying man by denying him “good hospital food”. A recurring theme in some of the evidence is the absence of rationality in the conclusions drawn by some of the members of the Nasr family. By way of example:

The testimonial evidence

1. [107]

   Most of the issues of contested fact in this trial turn on conflicts in the testimonial evidence. I summarise that evidence below, and in the course of doing so I will make some findings. However, I shall defer addressing the most important matters of contested fact, including those identified by the executors’ closing submissions, until the totality of the testimonial evidence has been addressed.

Nejme

1. [108]

   Nejme made a slim affidavit shortly before the expiration of the 12 month period for commencing proceedings seeking provision under the Act. Her substantive affidavit in chief was sworn on 23 May 2019. She annexed her marriage certificate and a translation. She said nothing of the first 49 years of her life. She explained how when she came to Campsie in 2001, she knew no one and no English. She said that she paid ¼ of the bills including electricity, water and council rates when Hanna lived with them, and that when he left, she and Ishac each paid ½.

2. [109]

   Nejme described the process of keeping banknotes in the home, and handing them to Clint for safe-keeping on annual trips to Lebanon. After they returned in September 2017, she described Clint returning 160,000,000 Lebanese pounds and $75,000 of Australian banknotes. She also described that her husband was unwell, with swollen legs. He was operated on for water on the lungs, and also diagnosed with cancer.

3. [110]

   She said that she visited Ishac each day for the 63 days he was in hospital. She also said she slept in his room on 9 nights, for which reason she told Clint to take the money in their house for safekeeping.

4. [111]

   On Ishac’s discharge, she suggested that the children hire a carer for him, but they refused to do so. She said:

5. [112]

   When Clint returned the money, Nejme said that he placed two bundles of $5,000 in a different room. She said that in December she suffered from stomach and lower back pain, and was told to go to the Emergency Department at Canterbury Hospital. She was in hospital for 16 days in all. After her first operation, Nejme said she tried to discharge herself, but suffered severe pain as she was leaving the hospital, and was told she needed to stay and have a second operation. Nejme said that while in hospital she was told that she was not to go back to the home. (It seems to be common ground that Clint did not want her to return and conveyed this to her.)

6. [113]

   Nejme said that the family told her they were taking Ishac to hospital. In fact she was told by a friend that the family had placed him in a nursing home, but that Ishac had been screaming all night and wanted to return home. She said that she was scared and fearful of what Ishac’s children might do, and that in addition to the Facebook posts in English, Clint had posted many more in Arabic.

7. [114]

   Nejme said that at no stage did Ishac express his testamentary intentions to her.

8. [115]

   Nejme’s cross-examination occurred in two phases. On the first day of the trial, she gave such background to the first 49 years of her life as has been summarised above.

9. [116]

   She described the two bedroom flat in Punchbowl where she was living, and also that sometimes she stayed overnight with a friend, sleeping on a sofa bed in the friend’s garage.

10. [117]

    She was cross-examined as to her credit, in relation to a claim that she had paid the water, rates and taxes for the Campsie property including after her husband died. She maintained that “I paid it all, and I still have the bills with me”. I am satisfied that she did not pay all of the Council rates, in light of Local Court proceedings commenced by the council. I am not persuaded that that evidence bears upon her credit. It seems to me to be far more likely that something was lost in translation, or misunderstood by the witness, than that she would attempt to maintain a very falsifiable proposition that she had in fact paid all the council rates.

11. [118]

    Nejme accepted that she was told in around 2015 that Ishac had been “included as one of the children” in his will (T38.23, 32), but maintained that that was not something she had sought.

12. [119]

    Nejme denied being told by Ishac prior to their marriage that she would not inherit any part of his property. She denied asking two persons not called as witnesses (Dr Boulis and Ms Emma Rizak) to attempt to persuade Ishac to leave her the house. She accepted that when she married Ishac, part of the arrangement was that she would care for him as he got older. She explained this by reference to what I understood to have been her wedding vows (T44.37):

13. [120]

    There was a large dispute whether Nejme left Ishac home alone. To interpolate, various of his children insisted that she spent long periods of time away. Nejme denied this:

14. [121]

    Nejme was squarely confronted with the gravamen of the siblings’ claims:

15. [122]

    Nejme denied this at length, not all of her answer being captured by the interpreter, including statements by her that the police had asked her to record videos of the children telling their father that he should divorce her.

16. [123]

    She denied maltreating Ishac, or that Ishac felt afraid near her:

17. [124]

    Nejme was recalled on the Thursday, to be asked questions about the recording of 2 February 2018 and the documents produced by the Commissioner of Police in answer to her subpoena.

18. [125]

    Nejme denied making a complaint to the police that her husband had verbally abused her and threatened to kick her out. She made it plain, repeatedly, that she called the police because her stepchildren were asking her to leave (T230):

19. [126]

    Nejme denied being abusive to her stepchildren at the barbeque on 6 May 2018. She said that the siblings had been abusive to her.

20. [127]

    She accepted that the children had told her that she was mistreating their father, but maintained that they were lying.

21. [128]

    The main focus of the second phase of Nejme’s cross-examination was the hidden camera recording of Nejme taken on 2 February 2018. Before being shown the recording, Nejme twice denied “pulling his head towards you in a somewhat aggressive manner” (T234.19 and 26). She further denied shaking him in an attempt to wake him up in order to talk with him, in the following terms, upon which counsel relied in closing address (T235):

22. [129]

    (The transcript accurately records Nejme saying “No” repeatedly as soon as the translation of the question was completed. She thereafter gave an answer in Arabic, which was translated.)

23. [130]

    After seeing the video, she accepted that she shook his head so that he could talk with her. She said that she had seen the video before, which had been “on Facebook for everybody to see” and had also been played in Court. (I was told that it had been played in the Burwood Local Court in connection with an AVO.)

24. [131]

    Finally, Nejme denied making false allegations to the police in order to make a paper trail for the inevitable estate dispute (T240.36).

Clint

1. [132]

   In some respects, Clint Nasr’s story has been one of great success in the light of adversity. He left Lebanon with the rest of his family in trying circumstances, and arrived in Australia with large family, aged 14 and with no English. He attended high school and studied English as a second language, and worked multiple jobs while studying law part time. He was admitted as a legal practitioner and is now a Senior Prosecutor for the police. He and his wife own their own home, as well as two investment properties. He is obviously intelligent.

2. [133]

   Yet in other respects, those successes count against him. The social media posts reproduced above were all annexed to Nejme’s affidavit. He did not address them in any of his numerous affidavits (some nine of which were read). He gave this evidence after referring in some detail to the monies spent on repairs ($146,270 or $163,270 on repairing the house in Lebanon, renovations many years previously to the Campsie property of $160,000, and more recent quotations for $468,000 and $454,000 to restore the Campsie house):

3. [134]

   I had the strong sense when this evidence was being given that the concession that the Facebook posts had gone a little too far was an answer to which he had given thought prior to being asked. That is not said by way of criticism; it would be strange if a man so intelligent as Clint had not considered the prospect of answering questions based on Facebook posts which were prominent in Nejme’s affidavit.

4. [135]

   It will be seen that at first Clint was reluctant to accept that he had written them, saying that another family member, who remained unidentified, had access to his account. If that be so, there was no disavowal in Clint’s evidence of any of their content, let alone any suggestion that he, as the named owner of the account, might take the posts down.

5. [136]

   Further, despite the dramatic content, which might suggest that either one could remember whether one wrote the post or did not, he insisted that he could not be sure. However, as his cross-examination continued, he accepted authorship of most of the posts.

6. [137]

   Shortly after giving the answer reproduced above, when he was asked of another post, he gave this evidence:

7. [138]

   That extremely defensive not to mention non-responsive answer perhaps reflects an appreciation that he had written something about which he had good cause to be defensive. Nonetheless, the sense of the evidence reproduced above, and other aspects of his evidence lead me to the conclusion that Clint lacks the insight to appreciate that it was deeply wrong for him to write the post, and deeply wrong for it to remain on his Facebook account, unless he were quite certain of its truth.

8. [139]

   The Facebook posts form part of a pattern of conduct directed to Nejme. Clint is identified in the evidence as the leader of the campaign against Nejme. He called her a “black widow”, a “grim reaper”, a “wicked witch”, a “satanic serpent”, a woman who “still protects herself under the roof of the man whom she murdered” and so on. He secretly filmed and recorded her tending to her dying husband. He was involved in keeping her from attending her husband’s funeral. He prepared a dossier of recordings, photographs and documents on the day after Ishac’s death for the police with the intention of prompting a murder investigation. Was there, as Clint maintained in his cross-examination, a basis for this?

9. [140]

   I watched counsel confront Nejme with the video made by Clint of her attending on his bed on the afternoon of 2 February 2018, 4 weeks before his death, which Clint described in the passage of his evidence reproduced above. I have subsequently watched the video, including portions not played to the witness.

10. [141]

    The video appears to show Nejme approaching the deceased who is sleeping or resting, eyes closed, on a hospital bed with the back elevated. There is an unobtrusive tube (presumably for oxygen) going into his nose. At no stage is that tube dislodged, so far as I can see. Nejme approaches him, and touches him gently. His eyes open. The two speak. Nejme seeks to record a conversation with him on her mobile phone. There is nothing covert about her doing so, and no reason to doubt that it would not have been obvious to him if the dying man were in his right mind. Nejme adjusts the height of the reclined back of the bed. Ishac’s eyes shut, and Nejme touches his forehead with one hand and shakes his head slightly. It is hard to judge from the video (which is of quite high quality) but it does not seem “somewhat aggressive” and it is not violent.

11. [142]

    This occurred on the 4th day of the trial, because the executors had initially decided, shortly before the trial (indeed, after the court book had been assembled) not to rely on the video. That arose because on the second day of the trial, Clint gave the non-responsive evidence in answer to a question whether he had made a Facebook post under his name which is reproduced above. Nejme’s counsel consented to her client being recalled in order to allow further cross-examination on the video.

12. [143]

    To respond to the matters raised by Clint in the passage reproduced above:

    1. (1)

       There is nothing in the video which even remotely suggests Nejme “tormented” her husband.

    2. (2)

       It is true that Nejme attempted to record a conversation on her mobile phone. It is richly ironic that the man who asserted that Nejme’s doing so was an invasion of Ishac’s privacy, had himself, days earlier, installed a hidden camera and microphone in his bedroom. Either Ishac consented to that occurring or he did not. If he did, it is impossible to see how Nejme’s recording a conversation was a serious invasion of privacy, for he had none. If he did not, then there has been an extraordinary invasion of Ishac’s privacy, as well as that of Nejme.

    3. (3)

       Whether or not Nejme was attempting to cause Ishac to make a false statement is something which cannot be established from the video.

    4. (4)

       It is simply not the case that the video shows Nejme “violently” pushing Ishac’s head, “causing him a great deal of discomfort”. The limitations of such evidence are familiar: see Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311.

    5. (5)

       Nejme denied that she did so in a “somewhat violent” manner. The question was asked repeatedly in those terms, without objection, and so I made an effort during the trial to clarify how those self-evidently ambiguous English words were translated into Arabic. I was told that to translate the words “somewhat violent” the interpreter used the word “betahajoum” which may well be بتهجم and which “Google Translate” translates as “attacking”. I cannot be certain, but my impression (derived from the answers given to me by the translator at T234.32-35) is that the question was asked in Arabic devoid of the qualification of the English “somewhat”. I have mentioned all this only because a high point of the executors’ attack on Nejme’s credit in oral address was this part of her evidence. Apart from that one word, I have no way of knowing how the nuances of “somewhat violent” were translated into Arabic, if indeed they were translated. Lest there be any doubt about it, in expressing those concerns, I am quite conscious that no translation is perfect and that the appropriate translation into Arabic may not have involved a particular word to convey the qualification in “somewhat”; cf the salutary reminder in DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; 95 ALJR 375 at [5]-[6] and [51]-[54].

13. [144]

    As well as recording video, the device installed by Clint recorded the conversation. It was inaudible when the video was played in court (when listening to it at maximum volume in chambers, it is almost inaudible, although some words can indistinctly be heard). Accordingly, the translation provided by the executors was not put to Nejme during her cross-examination. The translation comprised the following two passages:

14. [145]

    Two other matters are significant from the video.

15. [146]

    The first is that repeatedly throughout the video, Nejme looks behind her. She is not looking at the camera concealed in the clock radio, and the inference I would draw is that she was unaware of its existence. Rather, she is looking to the part of the room where one her step children who have joined her in the final weeks of her husband’s life would approach from (perhaps it is a doorway). I would infer that Nejme was concerned that others not know that she was attempting to record a conversation with her husband. That speaks volumes as to the position she found herself in. Most importantly, while she appreciated she was doing something she wished to keep a secret, that fact itself is the most powerful evidence that she was unaware of the hidden recording device installed by Clint.

16. [147]

    Secondly, Clint made enormous quantities of video. The passage summarised above, with the translation reproduced above, is the only one he sought to tender. I infer that it is regarded by the executors as the highpoint of the photographic evidence of mistreatment.

17. [148]

    Clint’s description in his oral evidence of what is seen on the video – which is a high point of the executors’ case – is a substantial exaggeration.

18. [149]

    As it happens there is some evidence corroborative of the inference I have drawn in the previous paragraph. Different footage was supplied to the police on the day after Ishac died. It was dated 17 and 26 February. It was reviewed by a police officer, who made the following note:

19. [150]

    Clint gave extensive evidence of his father’s cash savings, which he kept at home for fear of losing his pension. He described counting the cash from time to time, and how it was kept in a room to which only Ishac and Nejme had a key.

20. [151]

    Clint said there had been two earlier wills, one of which left the estate to all of the children in equal shares excluding Eva (this was said to have been a mistake), and a later one leaving the estate to all the children in equal shares. He said that he and George had managed to convince Ishac to include Nejme in his final will, despite Ishac saying “I agreed with Nejme that she will get nothing and I will get nothing from her parents. I want to stick with this agreement”. Clint said that Ishac said on many occasions he was uncomfortable with that decision. Clint also said that many of his siblings were unhappy with that decision, and that he was “the Plaintiff’s strongest supporter in this regard”.

21. [152]

    Clint gave a deal of evidence concerning food. He said that his wife had cooked a favourite Lebanese dish for Ishac, which he took to the hospital. He said that Nejme told him that she threw it in the bin because it didn’t have enough meat, but that a couple of days later, one of his sisters said she had seen with her own eyes Nejme eating it. He said that he had provided a case of bottled water for Ishac, and was astounded that Nejme continued to use an old bottle, filled with tap water, which he said was mouldy. A photograph might show mould, although it appears to my eyes to be at least equally consistent with there being some dirt on the outside of the bottle.

22. [153]

    Clint described the arrangements during his father’s last three months. He said that he slept at Campsie from about 10 December 2017 for five nights each week, in the same room or a neighbouring room as his father, with other siblings sleeping there on other nights.

23. [154]

    He gave straightforward evidence of his distrust of Nejme. He agreed with Nejme that he discouraged her from returning home after she was discharged from her own stay in hospital. He said:

24. [155]

    He gave evidence that Nejme did not attend to the oxygen nozzles, or the flow of oxygen. In addition to the hidden camera, he also installed an infrared motion sensor and wireless siren. He said in his affidavit that “Its purpose was to monitor [Nejme] entering and leaving the room so that I [could] get up and check whether she interfered with the oxygen nozzles”.

25. [156]

    Clint said that he only took time to watch all of the hidden camera footage he had installed after Ishac’s death. His affidavit said:

George

1. [157]

   George operates an air conditioning and refrigeration business. He gave his evidence in a straightforward, no nonsense manner. He was firmly of the view that Nejme had exaggerated her illness so as to go to hospital rather than care for her husband. As much was apparent from this exchange early in his cross-examination.

2. [158]

   George was distressed that Nejme was not at Ishac’s side in order to assist with the messy reality of an ageing, dying man’s bodily functions. That was something which was unquestionably her role, and her inability to wipe his father’s bottom upset the son. George then added, immediately after the exchange reproduced above.

3. [159]

   I find that those answers reflect George’s genuinely held views. Perhaps more clear was his evidence:

4. [160]

   His recurrent description of counsel cross-examining him as “Ms Prosecutor” suggests a familiarity with Local Courts exercising summary criminal jurisdiction, but whether that was first hand or simply how his brother suggested he refer to counsel is unclear.

5. [161]

   Although much of his evidence was direct and matter-of-fact, George found it difficult to answer some straightforward questions. An instance was the uncontroversial proposition that the videos taken by Clint showed Nejme attending to her husband:

6. [162]

   He struggled at length in answering the straightforward question that he was not present when his father had entered into an agreement with Nejme that she would not inherit under his father’s will.

7. [163]

   Not uncommonly, witnesses struggle to answer the precise question they are asked, rather than telling their side of the story. George was a clear example of that. I draw no adverse inference from his doing so. But I also give little weight to his non-responsive answers which advocated his case.

8. [164]

   George was of the view that he did not need to ask Nejme’s permission to occupy the home in the two years after Ishac died.

9. [165]

   George added:

10. [166]

    George’s cross-examination also revealed that he was unable to identify precise instances of misconduct. For example, his affidavit has said that he had heard Nejme screaming to her husband, “Why don’t you put something in my name?” and “In Lebanon, you would put something in my name” on many occasions from about 2005 in both Australia and Lebanon. He was unable to provide any details, in answer to open-ended, repeated questions.

11. [167]

    He concluded his cross-examination with this unsolicited comment:

12. [168]

    I cannot help but conclude that George sincerely believed, presumably because of something he had been told, that I would regard his evidence as more probative if I thought he was giving it without reading from his affidavit. He is in fact correct about that. In many respects judicial ability to discern truth from falsehood simply by a witness’ demeanour is in my view over-rated. However, a judge can get a reasonable view of whether a witness has a genuine recollection of an event or is merely grasping for a paragraph of an affidavit where he or she knows the answer is to be found. But the fact that George volunteered that last comment speaks loudly to his approach to giving evidence.

Eva

1. [169]

   The oldest daughter Eva maintained that Nejme had not been unwell when in December 2017 she was in hospital for 16 days. She was asked about her recollection that Nejme had said she did not want to care for her husband:

2. [170]

   Conceivably, had that evidence stood by itself, there would be a difficulty in assessing whether in truth Nejme had fabricated evidence, notwithstanding the unlikelihood of a conversation along the lines reproduced above.

3. [171]

   However, it was not put to Nejme that her illness was feigned. There is force in her counsel’s suggestion that a patient in a public hospital would not be permitted to stay for 16 days unless that were necessary. And I do not regard Eva’s evidence as reliable. Eva was a witness whose evidence was patently exaggerated.

4. [172]

   I return to the yoghurt. Eva gave this evidence:

5. [173]

   Clint took the photograph. It is highly unlikely that if there were in fact 200 yoghurt containers (Eva’s implication was that they had been stolen from the hospital where her father had been going hungry) they would not have been photographed. It is perhaps unnecessary to reiterate that in this family, hidden cameras were about to be installed, and Clint was assembling a brief which George would drop off to the police to investigate his stepmother for attempted murder.

6. [174]

   Eva was keen to say that everything that Nejme said was a lie, unable to address herself to the question she was asked, and unable to articulate the lies which she said Nejme gave.

7. [175]

   Eva’s evidence was filled with conclusionary statements. She said twice that it was not for her to judge Nejme. That led me to ask the following:

8. [176]

   I do not think that Eva understood my question asking for a reconciliation of the two conclusions she had presented. It is not the way she thinks.

9. [177]

   I do not accept that Eva found 200 empty yoghurt containers. I do not accept that every word Nejme spoke was a lie. I do not accept that Nejme manufactured ill health and on that basis remained in hospital rather than caring for her husband. I do accept that when Nejme was discharged, she was unable to lift heavy weights.

10. [178]

    I do not think Eva was attempting to answer many of the controversial questions. She regarded her role as to tell her story. That conclusion is not merely based on the transcript. Her imperfect but fluent English was delivered at speed, and with an increase in volume as she delivered her answers. At the end of a speech, she would conclude “Thank you”, the force of which was that she had nothing more to say.

Yvonne Maroun

1. [179]

   Yvonne lived in the Campsie home for five years after they arrived, until she married in 1982. She is a justice of the peace. She is employed as a payroll manager. Her husband has a very substantial income of $670,000 per annum. She has two children, one of whom has special needs.

2. [180]

   She said, and I accept, that while she was living at Campsie she contributed some of her income from a job presenting meals, coffee and water to patients at Canterbury Hospital to help repay the mortgage, amounting to about $4,500 over a four year period. She gave an additional $3,000 when the house was renovated in around 1981. At that time, her father said “After a long life the house is yours”, words which Yvonne said he repeated on many occasions. (No claim based on a resulting or constructive trust was advanced by the children.)

3. [181]

   Yvonne gave evidence that after Ishac was discharged from hospital in November 2017, Nejme spoke to her on the telephone and said:

4. [182]

   I find that words similar to that were spoken by Nejme. Nejme herself was unwell. She was 66 years old, of an age at which many nurses had long since retired. The realisation that her husband of 18 years was dying and would require enormous care if he were to remain in their home, and the expectations placed upon her by Ishac’s children and indeed herself, must have been upsetting.

5. [183]

   Yvonne’s evidence has a peculiarity which should be recorded. Her affidavit has a section headed “Plaintiff’s relationship with the deceased”, occupying paragraphs 27-32. Paragraph 27 deals with the conversation mentioned above after Ishac was discharged from hospital in November 2017. Paragraphs 28-31 deal with an incident in about “late January 2014”, shortly after Australia Day, when Ishac again went into hospital for a stent operation. Yvonne said that when she visited with her sister Elizabeth, Nejme looked disappointed. Paragraph 32 deals with an incident in early February 2018, when members of the family and a carer from the Wesley Mission were in attendance “to look after the hygienic needs of my father”. Her evidence is that Nejme rushed out of her bedroom and wanted to bath Ishac, and said “I don’t want anyone to help because he is my husband”, causing Ishac to be upset and to tell her “Move away”.

6. [184]

   I had thought that the reference to late January 2014 in paragraph 28 was an error for 2018, which would place the events in chronological sequence.

7. [185]

   That would accord with Yvonne’s cross-examination:

8. [186]

   But the typographical error (if that is what it was) in paragraph 28 of her affidavit was not pointed out to Yvonne. I proceed on the assumption that the stent operation occurred in 2014. However, consistently with her evidence in cross-examination, the incident in 2014 seems to have been to a one-off incident. I accept that there was a reasonable relationship between Yvonne and Nejme until late 2017.

9. [187]

   Yvonne shares the view that Nejme was not as unwell as Nejme maintained. In answer to a question whether she was aware that Nejme was herself ill, she said:

10. [188]

    She said “definitely we were advised from hospital that that was a very small operation and should not have taken that long for her to be out of the hospital”. It became plain that Yvonne thought that Nejme should have been tending to her father:

11. [189]

    I do not doubt that it was highly inconvenient as well as distressing for the children for their father’s second wife not to be caring for him at home after his discharge from hospital. I am conscious that there is a tension in the children’s case that (a) Nejme was feigning illness in order to be in hospital but (b) when Nejme was caring for her husband, she was doing so inadequately or even dangerously.

12. [190]

    Nejme’s medical records would have been available on subpoena. I accept Nejme’s evidence that she was sufficiently unwell to warrant being in a public ward for 16 days, and was unable to lift heavy weights after her discharge.

13. [191]

    Yvonne believed that Nejme wanted Ishac to die. She conveyed that she was disappointed when the police took no action and that if the matter did go to the coroner, the coroner took no action (“if they took no action, does [it] mean that, you know, we were happy with the outcome?”). She explained her views of Nejme’s guilt thus:

14. [192]

    The reference to Nejme befriending “Tom, Dick and Harry” recalls Clint’s use of the same language. It suggests that the siblings regularly spoke to one another concerning their views of Nejme, and ended up using the same language to describe her faults as they perceived them.

15. [193]

    Yvonne’s affidavit evidence concluded with the following:

16. [194]

    That account made no mention of Nejme being excluded from the funeral. Nor did it mention the police being called when the mourners who were permitted to attend returned to the home. It is entirely understandable that Nejme would want to be with friends on the day her husband was buried in her absence. It was legally correct for her to ask what they were doing in the house which her husband had left for her to live in for the two years after his death.

17. [195]

    Yvonne’s oral evidence was less inflamed than that of her sisters. I find that she sincerely believes that Nejme did not care for her father as well as she expected. She sincerely believed that she should have spent more time caring for him, and less time attending other people’s funerals and talking with her own friends. I find that no differently from some of her siblings, she has come to believe the extravagant statements about Nejme’s misconduct, which significantly exaggerate such failings as there were.

Elizabeth

1. [196]

   Elizabeth gave evidence that she lived with her parents in the Campsie home from 1977 until she got married in 1985. She said, and I accept, that during that time almost all of her money was paid to her father to pay off the mortgage and a loan from her uncle, amounting to approximately $10,000. She said that she paid this money on the assumption that she would own a share of the house when her parents died, and that in July 2000 her father said to her “The house is all for you after a long life”. These words echo Yvonne’s evidence about similar statements made by Ishac. As will be seen below, I think it is probable that such words were said.

2. [197]

   Elizabeth gave evidence of a number of incidents involving food and water. Elizabeth said that in January 2018, a cardiologist from Canterbury Hospital made clear to Ishac in the presence of both Elizabeth and Nejme that Ishac should only be eating soft food which was easy to swallow. Her evidence was that in February 2018, she was at the family home when she saw her father trying to eat leftover Asian restaurant food, which made him choke and vomit and gave him diarrhea. She was cross-examined on how she knew that it was the restaurant food that had caused him to have this reaction:

3. [198]

   Elizabeth said that in November 2017, she was at the family home cleaning the cupboards when she discovered hospital food meant for Ishac. She believed that Nejme was taking the food home and eating it herself:

4. [199]

   She said that in about December 2017, shortly after her father’s discharge from hospital, she noticed that he was drinking from a water bottle that was “fully mouldy inside” despite there being four boxes of unopened mineral water in the spare room. She said that she believed that Nejme intentionally gave her father water from the mouldy water bottle:

5. [200]

   As previously noted, it is far from clear from the photograph annexed to Clint’s affidavit that there was mould in the bottle (as opposed to discolouration on its outer surface). But even if that were not so, it is to be borne in mind that Nejme’s uncontradicted evidence in her affidavit made in May 2019 was that she had been advised that she urgently needed cataract surgery in both eyes. It is difficult to place any substantial criticism upon Nejme’s care for Ishac based on Elizabeth’s evidence concerning the food and water provided to Ishac.

6. [201]

   Elizabeth gave some evidence about an incident said to have occurred between Loretta and Nejme. In her affidavit she said that on 20 January 2019 (which I take to be a reference to 20 January 2018), while at the family home, she asked Nejme “Where is the injury you claimed was caused by my sister Loretta scratching you?” She said that Nejme responded “It’s been since Thursday which is two days ago. They healed.” Elizabeth replied “Wow! What a miracle.” In cross-examination, she gave the following evidence:

7. [202]

   There is insufficient evidence for me to make any finding as to whether Loretta in fact scratched Nejme on the neck, although I find it is difficult to accept in light of the way in which Loretta’s evidence was presented that Loretta “didn’t even talk to her”.

8. [203]

   Evidently Elizabeth shares the view that Nejme did not sufficiently prioritise Ishac in the care that she gave him. She said that on one occasion, when she arrived at the family home to find that Ishac’s oxygen was not switched on, Nejme was sitting on the veranda with two friends having coffee. When cross-examined on this point, Elizabeth stressed that Nejme was Ishac’s carer, and received a carer’s allowance in addition to her pension:

9. [204]

   I accept that no differently from some of her siblings, Elizabeth sincerely believed that Nejme’s role as a wife was to be her husband’s carer, for which she was additionally compensated in the sum of $140 per fortnight by way of a carer’s allowance, and that she did not achieve the standard of care Elizabeth considered appropriate.

Loretta

1. [205]

   Loretta gave evidence that after her father came home from hospital, she visited him six or seven afternoons a week, staying four to six hours each time. She said she attended with her daughter Samantha (the latter prepared an affidavit but it was not read). Loretta’s husband had leukaemia. Loretta gave evidence that she went to visit her father after her husband went to bed. She said that when she did so Nejme was “hardly” there, as late as 9:00 and 10:00 at night:

2. [206]

   Loretta stated in her affidavit that in late November 2017, when Ishac left the hospital, she heard Nejme say words to the effect of “I don’t want to look after him”. Loretta was cross-examined on this statement:

3. [207]

   There was a tension between Loretta’s evidence that Nejme did not want to and did not adequately care for Ishac, and evidence she gave to the effect that Nejme made it difficult for Loretta to care for Ishac.

4. [208]

   Loretta’s evidence also indicated a tendency to exaggerate. She stated “I with my brothers and sisters had a great relationship with my father. He never ever abused us or reprimanded us in any way shape or form”. It is difficult to accept that that could be so if what she said is to be taken literally.

5. [209]

   A similar, and for present purposes more significant, example is Loretta’s evidence that she and her siblings “were very concerned that [Nejme] would not look after [Ishac] and maybe even harm him”. Loretta was asked in cross-examination: “What harm did you think she was going to do to your father, Ms Kozma?”. Loretta responded:

6. [210]

   Loretta gave evidence of a number of specific confrontations with Nejme. First, on about 6 January 2018, after the siblings decided that one of them should sleep in the family home each night, she slept at the house with Samantha. She said that around midnight Nejme came up to her and said “Why don’t you go sleep in the bedroom.” Loretta replied, “No, I’m sleeping here to protect my father”. She said Nejme “got upset with my answer and stormed off back to her room”.

7. [211]

   Secondly, Loretta said that on about the same day:

8. [212]

   The cross-examination continued:

9. [213]

   Thirdly, Loretta said that on 17 January 2018 Ishac had tried to call Nejme over because he wanted a cup of water. Nejme ignored him and Loretta got him a cup of water instead. Loretta said that as she was doing so, Nejme “was filming my every movement in order to intimidate me”. Loretta agreed in cross-examination that relations between Nejme and the siblings had “deteriorated very badly” by that time. It is notable that Loretta considered Nejme’s filming her to be directed toward intimidation.

10. [214]

    Rather than showing failures by Nejme properly to care for Ishac or appropriately to interact with his children, these appear to my mind to be reasonable responses to the situations in which Nejme found herself, in circumstances where Nejme must have been under significant strain. Again, I infer that if Loretta had witnessed behaviour that could be considered more problematic than that outlined above, it would have been included in her evidence.

11. [215]

    Loretta gave unchallenged evidence that an ADVO was taken out by Nejme against her on 8 February 2018. This is consistent with the COPS records. The ADVO was said to have been taken out following an incident between Loretta and Nejme, three weeks earlier. Nejme claimed Loretta assaulted her, scratching her neck. Loretta disagreed this happened, saying she had merely argued with Nejme: T198.42. She said she had seen her father the night before and he had been in “severe pain”, but that Ishac could not be treated by doctors the following day because Nejme insisted on filming the doctors and Ishac, so that the doctors left without seeing him. Loretta said “I was so upset”. There was no evidence as to the details of any confrontation between Loretta and Nejme that this provoked. Loretta maintained that in late February 2018, the ADVO was withdrawn.

12. [216]

    Loretta maintained, and I accept, that between 1977 and 1984 she contributed more than $25,000 towards mortgage repayments and renovations at the Campsie property. She said she left school at the end of year 10 to work to help repay the mortgage and a loan from her uncle for a deposit. She said in cross-examination that she “had to” do this because “my father, my mother, they could not work back then”. Loretta stated that she contributed to the family home “on the expectation that one day, when my father died, the home would belong to his children”. This expectation appeared to have been based upon what Ishac told Loretta and others he had said to Nejme’s family before they married, namely that “the house belongs to me and my [first] wife” and that each of their shares was to go to their children.

13. [217]

    It is clear that Loretta considered that the property belonged to the siblings. She said in her affidavit that shortly after her father died, Nejme changed the locks on the house “to stop [Ishac’s] children from going to their family home”. She was asked cross-examination:

14. [218]

    She reiterated:

15. [219]

    As noted earlier in these reasons, Loretta disputed that her father’s testamentary intention had been, as reflected in his will, that Nejme should have the right to live in the house for two years. She said:

16. [220]

    It is unnecessary to decide whether Loretta physically assaulted Nejme, or merely argued with her. For similar reasons, it is unnecessary to decide whether on 17 January 2018 Nejme was filming Loretta in order to intimidate her. Loretta’s evidence provided further examples of this family’s tendency to film each other’s behaviour, which is indicative of the environment of mistrust and hostility in which they were operating. No differently from most of her siblings, I find Loretta sincerely believed that the care Nejme provided to Ishac, and the extent to which Nejme was available to meet Ishac’s needs and requests, did not meet the standards Loretta expected.

Hanna

1. [221]

   The youngest child, Hanna, is married with two dependent children. He is employed as a senior financial analyst. Together with his wife he owns a home and two investment properties. He gave evidence that some thirty years ago, in 1992, he hired a paint contractor to paint the entire house, for $3,300, as well as purchasing items of furniture totalling some $22,000.

2. [222]

   He reiterated that his father had often said that “everything I have is for my kids”, as a result of which he believed that all Ishac’s property would be left to the nine children.

3. [223]

   Hanna maintained that Nejme did not properly look after his father. He said that his father often complained that he was frequently left alone. One instance was Nejme spending 10 days in Melbourne.

4. [224]

   He gave evidence that on two occasions, while Ishac was in hospital, he rang Hanna in the early hours of the morning saying “I’m hungry, they’re not feeding me”. He saw the photograph reproduced above of the hospital food. I understood the unarticulated complaint to be that Nejme should have been with him in hospital, each evening, feeding him, rather than taking hospital food.

5. [225]

   He gave evidence to the same effect as his siblings of occasions when the oxygen nozzle had slipped from Ishac’s nostril, and the statement concerning witchcraft reproduced above.

6. [226]

   Hanna’s cross-examination was very brief. He accepted that until 2017, he had a fairly good relationship with Nejme (T268.38). He confirmed that one of his siblings, perhaps Elizabeth, had found Nejme doing “very unusual things” to Ishac, and while he did not believe in witchcraft, this confirmed his concern that Nejme was not properly looking after him.

Joumana

1. [227]

   Joumana was Ishac’s daughter in law and is Hanna’s wife. The two married in 2001 in Lebanon and moved to Australia shortly thereafter, in July of that year. They lived at the Campsie property with Ishac and with Nejme (after she arrived) until 2006. Joumana said she commenced working full time 5 months after arriving in Australia.

2. [228]

   Joumana gave evidence that Nejme was “barely home during the day” and was out “most nights” for a time that “exceeds hours … we’re talking about three, four, five hours” and for reasons that “had nothing to do with, you know, going to a doctor’s appointment or going shopping. I’m talking about going visiting friends or, you know, socialising”. She recalled her father in law calling Nejme “dewarra”, which she said was an Arabic term for someone who is never home. Joumana clearly shared the view expressed by many of her husband’s siblings that Nejme should have been at the house to care for Ishac unless she had an essential reason for leaving. She said on the one hand, that Ishac had been frustrated that Nejme was not at home when he needed her and that Ishac had “wanted a younger wife to do the things that he couldn’t do for himself”, and on the other that Ishac “was the least demanding person”. This evidence is difficult to reconcile.

3. [229]

   Joumana referred many times to “duty”: her duty as a daughter in law and Nejme’s duty as a wife. For example:

4. [230]

   And:

5. [231]

   She said Ishac refused to let others care for him, stating:

6. [232]

   It appears from Joumana’s evidence that Ishac held this view for the duration of his marriage to Nejme, not just after he returned from hospital. Joumana said that when she was living at the Campsie property:

7. [233]

   Joumana gave evidence of a conversation she had with Ishac when he was in hospital to the effect that he was missing $59,000 and considered that Nejme possessed the missing money. She also said that he did not trust Nejme to read his mail or to know the details of his bank accounts.

8. [234]

   Joumana gave examples of the inadequacies in Nejme’s care for Ishac:

   1. (1)

      In January 2018, when Ishac asked Nejme to put his compression socks on him because he could not do so himself, Nejme replied “I can’t”. Joumana then put the socks on Ishac. I note that Nejme was said to have returned from hospital in December 2017, after which there was a period of time that she was unable to lift heavy things.

   2. (2)

      On 1 February 2018, Ishac was sitting in a leather recliner which was positioned upright, so that it appeared to Joumana that he was about to fall off the chair; the oxygen nozzle had also slipped from Ishac’s nostrils;

   3. (3)

      On 11 February 2018, Ishac called Nejme a number of times very loudly and she did not respond, though she was sitting nearby. This occurred shortly after the ADVO against Loretta was said to have been taken out.

   4. (4)

      Nejme lit candles and burnt incense in the room after Ishac had returned from hospital, even after Joumana asked her not to.

9. [235]

   Joumana also gave evidence to similar effect as Hanna and his siblings of a phone call from Ishac when he was in hospital saying he was hungry, after which time Joumana helped clean the house and found the hospital food, referred to above. Her testimony to the effect that Ishac would telephone from hospital telling the children he was hungry has been reproduced above.

10. [236]

    It was put to Joumana in cross-examination:

11. [237]

    She accepted she had not personally been at the hospital at Ishac’s mealtimes.

12. [238]

    Despite a measure of exaggeration, I do accept that Joumana genuinely considered it was Nejme’s duty as Ishac’s wife to care for him and to be available to provide that care more than was the case.

Ms Salame Ayoub

1. [239]

   Ms Salame Ayoub gave evidence principally through an Arabic interpreter. She was a sister of Eva’s husband. She lived nearby and knew the deceased and his first wife, and then came to know Nejme well. She said that she and her husband regularly socialised with Nejme and Ishac, and that on occasion she and Nejme would go shopping together leaving their husbands talking together at home.

2. [240]

   She agreed that from 2001 to 2017, she never heard any complaints about Nejme from Ishac’s children. In answer to open-ended questions, she said that the first negative comment about Nejme occurred in 2017, concerning a dispute as to when the pair would travel to Lebanon. The issue was merely as to the timing. Follow-up questions confirmed the timing. I found it impossible to doubt that Ms Ayoub was doing other than her very best to answer the questions she was asked, and unlike many witnesses, she appreciated the imperfections of her own recollection as to time (eg T152.1).

3. [241]

   Ms Ayoub was an independent witness, called by the defendants, who confirmed that Nejme and Ishac had a loving relationship, and that Nejme cared for him.

4. [242]

   Ms Ayoub’s affidavit stated that once when visiting Nejme her house had been broken into, and that she thereafter reduced her contact with Nejme. A natural reading of her affidavit was that there was a causal connection between the two, and it was open to the inference that Nejme had had something to do with the break-in. Ms Ayoub’s affidavit was very short, and it was difficult to see why the defendants had bothered to adduce it if not to sustain such inferences or conjectures. Mr Ayoub unequivocally disavowed any suggestion that Nejme was involved in the break-in, and any causal connection between that event and her “retreating” from Nejme. I accept her evidence.

Credit

1. [243]

   I do not think any party or witness was consciously telling untruths. I hold that view even though aspects of some of the testimonial evidence were demonstrably wrong, and that parts of the evidence of most witnesses were unreliable. I accept the evidence of Ms Ayoub unhesitatingly, although I am conscious that she tended only to witness the outward face of the marriage.

2. [244]

   As noted above, I do not accept that Nejme paid all the rates on the Campsie property after her husband's death, or that there were 100,000,000 or more old Lebanese pounds taken by the siblings to Lebanon. I think Nejme’s evidence as it emerged during the hearing concerning those matters was unreliable. That may be because the nuance of the question was lost in translation, or it may merely be the unreliability or malleability of memory. Where there are contemporaneous documents, or other reliable evidence (such as the local council's statement of claim) I prefer them to Nejme’s. For similar reasons, I have doubts as to the reliability of Nejme’s denial of calling the police on 3 March 2018 complaining that Ishac had told her she must leave the house. There are many possibilities in seeking to reconcile her evidence with the COPS report (supported, as it happens, by Clint’s evidence). However, I do not accept the criticism that was made of Nejme for failing to disclose her bank account in the schedule of her affidavit as to assets. It is far from clear that the translation of “assets” into Arabic made it clear that the list was to include intangible property, and in any event the affidavit referred transparently to her bank account, and the gravamen of her evidence was that there were minimal funds in it.

3. [245]

   Likewise, I do not accept that much of the siblings’ evidence, or that of Joumana, is reliable. Much was exaggerated. The notion that Nejme feigned sickness in order to avoid tending to Ishac is one example (and I note that the executors did not ask me to find that she did in fact feign sickness). The notion that Nejme was “somewhat violently shaking” Ishac in the video recorded on 2 February 2018 is a second. The idea that vast quantities of hospital food was taken by Nejme, leaving her husband hungry, is a third.

4. [246]

   It is not merely that the evidence adduced by the executors has come to be exaggerated. I think that the siblings and Joumana have come to hold unrealistic expectations of what was required of Nejme as Ishac’s wife in his final weeks. An example is the notion that Nejme should have been with Ishac while he was in hospital, day and night, so as to feed him. They have then seized upon the occasions when Nejme did not attain those expectations, elevating their significance out of proportion, and reaching the conclusion that Nejme did not care as well for Ishac as was her duty. I accept that the siblings and Joumana have come to believe in the truth of these conclusions, but I do not regard them as a sound basis for a finding that almost four years ago Nejme was in truth failing to care for Ishac.

5. [247]

   Where there is a conflict between the testimonial evidence of Nejme on the one hand, and one or more of the siblings (or Joumana) on the other hand, I have relied on the inherent probabilities of the situation, the documentary evidence such as it is, the evidence of Ms Ayoub, and my conclusion that the siblings’ evidence is prone to exaggeration, especially when it concerned events during the last three months of Ishac’s life. In large measure, I prefer Nejme’s evidence of her conduct towards Ishac, and the siblings’ conduct towards her. I found Nejme’s evidence more credible and less prone to exaggeration than that of the siblings and Joumana. I explain why, by reference to the principal findings of disputed fact identified by the parties, below.

Findings on principal issues of fact

1. [248]

   I turn to the balance of the findings which the parties ask me to make, in accordance with the documents supplied on the last day of the trial.

2. [249]

   The executors seek a finding that there was “an arrangement in place between the deceased and the plaintiff, at about the time of their marriage in 2001, that she would not inherit from his estate”.

3. [250]

   The finding contended for was elaborated at T328-329. The executors’ counsel accepted that any arrangement was oral, and that there was no direct evidence of it. Counsel contrasted Nejme’s denial with the positive evidence of Eva and Loretta. The significance of any such arrangement was limited:

4. [251]

   Counsel disavowed any reliance on s 95 of the Act.

5. [252]

   What does it mean to say there was an “arrangement”? It was not said that there was a binding promise which would be breached if Ishac left any of his estate to Nejme. Rather, I understood that what was put was that if there was a common understanding that Nejme would not be left any of Ishac’s estate in the event that he predeceased her, that somehow informed the discretion to be exercised in the present application. How precisely that could be so was left unexplored. It would seem that the executors’ general approach was to say that the “arrangement” must have contributed to the Nejme’s expectations (not to mention the expectations of the children of the first marriage), with the result that adequate provision had already been made by the 10% entitlement in the will.

6. [253]

   There was a deal of evidence from the siblings who were cross-examined that Ishac said, repeatedly, that the house would be theirs when he died. Some said that Ishac said that Nejme had agreed not to inherit from his estate. The most elaborate evidence was from Clint, who explained that the arrangement was binding as a matter of Lebanese law.

7. [254]

   I start with the objective facts. First, Nejme was almost three decades younger than her husband. He was 78 when the pair married. Simply as a matter of statistical mortality, he was extremely likely to predecease her. There was every prospect in 2001 that Ishac’s death might not be too far forwards into the uncertain future.

8. [255]

   The unlikelihood of the marriage lasting 17 years diminishes the weight to be given to any “arrangement” of the type for which the executors have contended. It is one thing for there to be an arrangement that a wife would not inherit if her husband predeceased her after a few months, it is another thing entirely if the husband and wife have had a very long marriage.

9. [256]

   Secondly, it is quite plain that Ishac did not give Nejme a share of the legal title to the Campsie property, which had previously been co-owned by Ishac and his first wife Najla (see Exhibit CN-6). It is perfectly plausible, and I find, that Ishac was concerned to tell his children, and the community more generally, that his second marriage would not lead to his much younger wife inheriting the property to the exclusion of his children. A non-responsive answer from Loretta suggested as much (T200.1):

10. [257]

    The closing sentence is exactly what an elderly man with a much younger second wife might proclaim to his children and their friends and the friends of his first wife.

11. [258]

    Thirdly, if Lebanese law gave some force to an arrangement of the type for which the executors contended, there was no evidence of it. And, assuming favourably to the executors that Lebanese law did recognise some binding pre-nuptial agreement concerning the husband’s deceased estate, it is pellucidly clear that such an arrangement would desirably be placed in writing. But there is not a skerrick of evidence of any written form of agreement.

12. [259]

    Fourthly, such an agreement could not in any event displace the effect of Ishac’s valid 2015 will. To be fair the executors accepted as much. They also accepted that if there were such an agreement, it was superseded by the will.

13. [260]

    I conclude that the executors have not established that there was an arrangement whereby Nejme could never inherit Ishac’s estate if he predeceased. It is inherently probable that there would have been discussions concerning the ownership of the home, and that Nejme acceded to marrying Ishac without becoming a co-owner of the home. The fact that Ishac repeatedly said that the house was for his children is not much to the point. For the most part, that occurred when the siblings were young adults, and contributed parts of their modest earnings to finance its acquisition and improvements to it. This is decades before Nejme came on the scene. And the children do not assert some proprietary estoppel let alone contractual claim upon the estate by reason of assurances made by Ishac during his lifetime, although some of their affidavit evidence is couched in language consistent with such a claim.

14. [261]

    There was uncontroversial evidence that Ishac, who seems never to have worked a day in the 41 years he lived in this country, but instead received social security benefits for the entirety of that time, accumulated quite large amounts of cash. This was in addition to the amounts saved in a bank account. The executors located $53,000 in Australian currency at the property, as well as 20,000,000 Lebanese pounds.

15. [262]

    There was some evidence from Clint, which was unchallenged and which I would accept as inherently plausible, that Ishac was very concerned that the assets test might jeopardise his entitlement to the age pension. There was also a deal of evidence that he and Nejme were extremely frugal. Despite their annual trips to Lebanon, I find that they lived frugally for the rest of the year. There was evidence that when Ishac and Nejme returned to Lebanon, rather than leaving the cash in their home, it would be given to Clint for safe-keeping, and then given back and duly counted when they returned.

16. [263]

    The issue I am asked to resolve is whether, instead of the AUD$53,000 which the executors located in the Campsie home, there should have been $102,000, of which Nejme stole $49,000.

17. [264]

    There are no records in evidence as to the amount of banknotes which should have been present on the property. Nor was there any eye-witness to a theft.

18. [265]

    It was common ground that in around February 2018, Clint noticed money was missing, and placed (in his words) “considerable pressure” on Nejme to recover it, as a result of which she returned $10,000. She says that Ishac had hidden $10,000 in another room, which she presented to him. Clint relies on this to establish that she stole the unreturned balance.

19. [266]

    If indeed Nejme stole $49,000, it seems odd that she would return $10,000 to Clint. But in any event, I am unpersuaded by Clint’s belief that Nejme is a thief. Nejme denied this in cross-examination. I do not regard what I saw of her denials in Arabic, or her emotional responses on the AVL screen, as giving me some privileged position over what is apparent from the transcript. She had denied the allegation previously, and did so with the vehemence and emotion which accompanied much of her oral evidence. But I would need to be satisfied to the civil standard, but consistently with s 140 of the Evidence Act, that Nejme is a thief, and the fact that Clint believes that she is falls far short of persuading me that she is. Clint is capable of forming the view that Nejme has committed serious criminal conduct on flimsy evidence. His view that she accelerated the death of his father is a clear example. I am not close to being satisfied on the basis of Clint’s uncorroborated opinions, having regard to the seriousness of the allegation, that Nejme stole $49,000 from her husband.

20. [267]

    I accept that in his last weeks of life, there were times when the oxygen tubes going into Ishac’s nostrils came loose, and that Nejme might have reconnected them more quickly than she did. I do not accept that this shortened Ishac’s life. There is no probative medical evidence of this (Clint sought to give some hearsay evidence of this, which I discount as improbable and self-serving). There is no reason to think that Ishac’s compromised lungs required an additional supply of oxygen for every second of every day – and if that were so, it seems unlikely that he would have been permitted to be discharged from hospital. I do not regard the conclusions drawn by the siblings or Joumana as reliable evidence of maltreatment by Nejme.

21. [268]

    I was expressly asked not to make a finding concerning whether Nejme mal-treated her husband. However, in light of the seemingly sincerely held views of some of the witnesses, I think it is appropriate to record that I do not accept that Nejme by any positive act attempted to accelerate her husband's death. If that were the case, she was spectacularly unsuccessful in achieving it. The fact that she was, as I find, secretly recorded denying any such thing supports my conclusion. So too does the fact that Clint’s repeated attempts for the police or the coroner to investigate came to nothing, and those bodies had the benefit of substantially more evidence assembled by Clint than do I.

22. [269]

    I reject the executors’ submission that Nejme’s care fell short of what she said she was doing, still less that it was deficient in some way. I accept that the siblings and Joumana believe that to be the case. But I find that they have unrealistic expectations, and have substantially exaggerated their complaints. They seem to have regarded Nejme as a 24-hour live-in nurse, rather than an ageing wife who was far from healthy herself. I have sought to explain above the instances where the conclusions drawn by the siblings are unfounded. I accept that from time to time Nejme may have been a little less attentive to Ishac’s needs than could have been the case. But I bear in mind that she was in her late 60s, was herself unwell, faced an uncertain future, and not least was confronted by the constant presence in her home of stepchildren who made clear that they believed she was mistreating Ishac and wanted her to leave her dying husband and the only home she had known in the previous 17 years.

23. [270]

    It follows that I accept that Nejme has been mistreated by the siblings George, Eva, Yvonne, Elizabeth, Lorretta, Clint and Hanna. None of the siblings who was cross-examined sought to distance themselves from Clint's social media posts, including the claims that Nejme had attempted to murder her husband. I do not accept their evidence that Nejme behaved poorly, whether by feigning illness, or not property attending upon Ishac at hospital, or failing to look after him when he was discharged from hospital, or stealing food or money from him. Nejme’s exclusion from the funeral was wrong. I find that the siblings attempted to make her tenure in the Campsie home unpleasant. The siblings’ behaviour is consistent with an appreciation that if she were to vacate possession, then her entitlement under the will would lapse, but that was not put to any of them and I refrain from making such a finding.

Closing submissions

1. [271]

   A deal of Nejme’s closing submissions were directed to the “reprehensible” Facebook posts apparently made by Clint. I am conscious of the limitations attaching to that evidence in the way it has been adduced. They include the following:

   1. (1)

      To the extent the posts were in Arabic, they were not translated, and I have put those texts to one side, save only that the Arabic texts accompanying the references to “Grim Reaper” and “Black Widow” appear to be translations of the English, which confirms what I would otherwise infer from the lines of a bilingual text, namely, that the intention behind them was for the obloquy directed to Nejme to be understood by Arabic readers.

   2. (2)

      There are a couple of posts by Eva which appear to be directed to a different subject matter, and although it is possible that one post by her is supportive of the post under Clint’s name, it is equally possible that it refers to another post. I think it would be unsafe to attribute to Eva’s post an endorsement of what appears in the post on Clint’s account.

   3. (3)

      Many of the posts are accompanied by “likes”, although the identities of the users who expressed those views are not disclosed. There also seem to have been comments, but they too are not disclosed in the printouts which have been tendered.

   4. (4)

      The fact that a post appears on an account described as “Clint Nasr” and with his photograph does not mean that Clint made the post. I have referred above to Clint’s unelaborated suggestion that some other family member used his account. However he accepted that he was the author of at least some of the posts annexed to Nejme’s affidavit. Further, there was nothing to suggest that he had taken any steps to remove any of the posts, or otherwise disassociated himself from them.

2. [272]

   The posts are vile. They seem to have been calculated to cause others to share the author’s views of Nejme. The executors’ counsel, rightly, deprecated them, acknowledging that they “should not have been made” and were “a horrendous thing to be putting online”: T345.45-46. I gave some thought to whether they should be included in this judgment, but concluded that they needed to be because merely reproducing the text does not, at least to my eyes, convey the full force of what was being done under Clint Nasr’s name. However, I have not reproduced the image of Nejme in the “Grim Reaper” post.

3. [273]

   Clint’s conduct went beyond posting on Facebook that Nejme was a murderer. For example, he attested to telling a hairdresser in August 2018 that Nejme “passively and actively restricted [Ishac’s] breathing on many occasions”, to which the hairdresser was “instantly shocked” and said:

4. [274]

   Nejme submitted, based not only upon the Facebook posts, but also the balance of his evidence, including what was to be inferred from the COPS records, that Clint’s conduct was reprehensible and unbecoming:

5. [275]

   Some of Clint’s conduct was in the immediate aftermath of his father’s death (I have in mind in particular the scene at the home to which police were called on 3 March 2018, and the preparation by him of a dossier supporting a murder investigation the following day). I note Clint’s evidence that he has sought professional psychological and psychiatric help following his father’s death. However, the dates of the posts are significant. Those in evidence include posts made many months after Ishac’s death. And they maintain the claims of criminality of the highest order after, surely to Clint’s knowledge, his initial dossier did not lead to a murder investigation. The high point of his case as presented in this litigation was the 2 February 2018 recording, and that has been blown out of all proportion by Clint.

6. [276]

   I would readily accept that the Facebook posts were made in Clint’s private capacity, and there is nothing apparent in those placed in evidence which discloses any connection with his position in the NSW Police Force or as a legal practitioner. However, conduct unconnected with the practice of law which brings the profession into disrepute is within the forms of conduct which may attract professional discipline. Clint vilified Nejme, over many months, with a view to changing the views of the local community, both English and Arabic speaking, in a way which sits very uneasily with the responsibilities courts place upon legal practitioners, especially those practising in criminal courts.

7. [277]

   I will permit Clint to be heard further about this, but there is in my opinion a proper basis for concluding that Clint’s conduct is conduct which, as Nejme’s counsel has submitted, is discreditable or capable of bringing the profession into disrepute. If so, that is not something which should pass unremarked and unresponded to. The directions I shall make will give Clint an opportunity to be heard as to whether I should refer Clint’s conduct to the appropriate professional body to consider investigating whether there has been unsatisfactory professional conduct or professional misconduct.

Conclusion and orders

1. [278]

   Nejme was Ishac’s wife for 17 years. Their marriage was not one framed around the raising of children, but that does not mean that her status does not attract the usual moral duties of testators to their widows. An element of the marriage of heightened importance, given the difference in ages, was her caring for him in sickness as well as in health. Contrary to the executors’ submissions, I have found that she did so. Her claim to a share in his deceased estate is not to be assessed as if she were an indentured domestic servant; see Van Gervan v Fenton (1992) 175 CLR 327 at 350; [1992] HCA 54.

2. [279]

   Nejme and Ishac supported themselves through their social security income. Nejme’s bank accounts were not placed in evidence, but I accept her evidence that her pension was used to support the couple’s expenses.

3. [280]

   The executors disavowed any submission that Nejme had a hoard of money (in cash or a bank account or some other store of wealth). The payment of domestic expenses over 17 years, coupled with sharing the home over that period, in circumstances where Nejme came to this country with no language or skills or employment, amount to a substantial financial dependency.

4. [281]

   I accept that Nejme understood before she was married that she would not become a co-owner of Ishac’s assets. But I do not accept that there was an “arrangement” whereby she would never inherit from his estate if he predeceased her, and even if there were, I doubt that in the facts of this case it would make much difference (the position might be different if the marriage had lasted only a year or two). It is clear that a widow’s view as to whether the provision in a will is adequate is of limited relevance, if any, to the discretion under the statute: see Steinmetz v Shannon (2010) 99 NSWLR 687; [2019] NSWCA 114 at [178]-[180].

5. [282]

   There is no special “rule” for widows. Jordan CJ denied this in Re the Will of Gilbert (1946) 46 SR (NSW) 318 at 322: “there is no general rule that the widow's right is in all cases paramount”. However, I have regard to the endorsement by Brereton JA in Steinmetz v Shannon at [103], with whom in that respect White JA and Simpson AJA agreed, of the following statement by Young J in Paton v Public Trustee (NSWSC, 8 December 1988, unreported), in dealing with a long but relatively unhappy marriage:

6. [283]

   I share the same view. Insofar as the evidence in the trial suggests that traditional Lebanese cultural values point to a different result, I do not accept that that has any relevance to applications under the Succession Act. There is no textual basis for a consideration based upon “community values” of a particular ethnic community (contrast s 60(2)(o) which explicitly authorises regard to “any relevant Aboriginal or Torres Strait Islander customary law”). Even if there were, I would favour the view expressed by White JA that it is the broader Australian community, rather than the narrow community from which the family has been drawn that matters: see Steinmetz v Shannon at [41].

7. [284]

   In short, her marriage of 17 years places Nejme in the position of any other widow. She is entitled to a reasonable measure of security of living quarters and means for the rest of her days. I think it is plain that now, in 2021, adequate provision for the proper maintenance, education or advancement in life has not been made by the will. That would be so even apart from the way in which Nejme has been treated after Ishac’s death. It is all the more the case, when the 2 years’ residence to which she was entitled under the will has been impacted by the siblings’ disturbance as detailed above, and the bequest of 10% of its proceeds has not yet occurred. No doubt that is in part due to her litigation, but part of the reason for the delay lies with the wrong steps taken by the executors not to sell the land and to adjourn the proceedings in order that there be a police or coronial investigation into Ishac’s death.

8. [285]

   The parties’ competing positions on the appropriate order for provision, in the event that I were satisfied that adequate provision had not been made in Ishac’s will within the meaning of s 59(1)(c), were far apart.

9. [286]

   Nejme submitted she wished to remain in her local area and community, near her Church and near an area where she has spent all of her Australian life. She submitted that a “modest, two bedroom unit in the Campsie area can be expected to sell for between $550,000 and $700,000”, with lower prices further west in the Bankstown area. She proposed an amount of $600,000 allowing for stamp duty, together with $50,000 for personal effects. She opposed any form of Crisp order in light of the animosity between her and the executors.

10. [287]

    The executors proposed either no provision, or else a contingency fund (impliedly, a small one) for expenses and unforeseen circumstances. I think neither comes close to amounting to what is appropriate provision for a wife of 17 years.

11. [288]

    I am conscious of the executors’ closing submissions to the effect that Nejme had advanced no evidence of the costs of acquiring property in accordance with her needs. They said:

12. [289]

    I accept the executors’ submission that I cannot proceed without evidence on the basis that $600,000 is needed to acquire a modest apartment suitable for Nejme’s needs. I do not accept their submission that there is insufficient evidence of need to make any order for substantial provision. There was unchallenged evidence that Nejme has minimal assets, an income insufficient to meet her needs, is living in inappropriate accommodation, and faces increasing medical expenses. A deal of this was presented in her case in chief. Subsequent to the submission summarised above, I permitted Nejme to add to her case updated details of her financial position (which had been provided to the executors’ solicitors relatively shortly before the trial). Although an opportunity was given for the executors to cross-examine her, it was not taken up (T351-352). I observe that Nejme’s position is inherently plausible, given the life she has lived since arriving in this country in 2001, and in particular what has occurred since Ishac’s death.

13. [290]

    I raised during the hearing the possibility of making provision in accordance with a life estate, necessarily subject to orders derived from Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979). The executors submitted, by way of fallback, that a “portable” life estate such as that ordered in Ng v Lau; In the Estate of Ken Kui Yuen Lau [2020] NSWSC 713 might be appropriate. The executors’ submission was in the following terms (written opening submissions, paragraphs 135-136):

14. [291]

    A life estate may be appropriate for a surviving spouse who is elderly and is likely to predecease the children of the marriage. That is not the present case. I have no actuarial or medical evidence, but simply as a matter of statistics, Nejme who is aged 69 is moderately likely to outlive some of her stepchildren.

15. [292]

    Further, in the present case, a Crisp order would require the appointment of an independent solicitor, for it is quite clear that Nejme’s entitlement to accommodation should not involve any contact with or decision-making by either of the current executors. That in turn would involve a cost to the estate, almost certainly on an annual basis. If the NSW Public Trustee & Guardian were appointed, its fees would include 0.77% per annum for trust management (I have derived this from https://www.tag.nsw.gov.au/fees/trust-fees, which is a source which satisfies the requirements of s 144(1)(b) of the Evidence Act 1995 (NSW)). If Nejme were to live to her mid-80s (which reflects the average life expectancy of an Australian woman) then it would seem likely that more than 10% of the estate would be consumed by fees.

16. [293]

    There are further difficulties consequent upon a “portable life estate”. The Campsie property has to be sold, but how much of the proceeds of sale are to be devoted to an apartment for Nejme, as opposed to a distribution to the beneficiaries? The interests of Nejme and the siblings are diametrically opposed in this respect. Further, there may be tension between Nejme’s preference for an apartment that suits her for her remaining days, and the interests of the estate, which would prefer an apartment with an appreciating value by the time of Nejme’s death. And the evaluation involves at least two levels of approximation, because neither the net proceeds of sale of the Campsie property nor the true cost of acquiring another property can be known at present.

17. [294]

    I have considered an approach based on the sum sufficient to provide an annuity, an approach taken in O'Loughlin v Low [2002] NSWSC 222, but think it is inappropriate. It is notorious that interest rates are presently very low, and it would be invidious to assume that they will not rise substantially in the next decade, and the effect of a small increase upon a very low base is dramatic.

18. [295]

    All these considerations point to the conclusion that the appropriate course is to make a decision now as to a regime which will permit Nejme and the siblings to go their separate ways.

19. [296]

    All of the above points to Nejme obtaining an order for the provison of a sum of money derived from the sale of the Campsie property.

20. [297]

    I have considered whether Nejme should be awarded a proportion of the net proceeds of sale, or a fixed amount. I have concluded that the latter is preferable, despite the approach taken in Ishac’s will of awarding beneficiaries a percentage of the proceeds. The approach taken in the will was appropriate where the testamentary purpose was to achieve equality. But that is not so for present purposes. Ordering provision in a fixed sum will remove one level of uncertainty. It may also give greater flexibility to the executors and the siblings. If indeed as I was repeatedly told (including by Clint) that the house has immense sentimental value to the siblings, then the executors may through refinancing (which seems plainly a possibility having regard to the assets owned by some of the siblings) pay out Nejme and reach some consensual arrangement amongst themselves.

21. [298]

    There is evidence of Nejme’s need, summarised above, which I permitted to be adduced on the last day of the trial, after the executors complained (in final address) about non-compliance with the practice note. Nejme has no assets to speak of, and her only prospect of income is from social security. She has a present need of funds to improve her accommodation and the prospect of escalating expenses as she grows older. I think she is entitled, after the travail of the last 4 years, to a sum which in the form of a buffer will give her a measure of security for the remaining years of her life.

22. [299]

    I think there should be an order for provision from Ishac’s estate of $500,000. That will enable her first to acquire basic domestic assets (such as whitegoods) of which according to the evidence she is in need. It will permit her to repay her brother who has lent her money since Ishac’s death. It will enable her to improve her accommodation, which she says is unsuitable, and which costs $300 per week (whether that is by investing it and using the income and perhaps some of the capital to service a larger rent liability, or whether she acquires a very modest apartment in Sydney, or whether she chooses to leave the city is a matter for her to choose). It will enable her to enjoy the security of a home, which she had enjoyed over 17 years of marriage, and which she has not enjoyed since Ishac’s death. The provision will also constitute a buffer against the increasing likelihood of medical expenses, which is consistent with her age and her evidence of existing conditions.

23. [300]

    There is an inevitable rough-and-readiness in that quantification. There are a number of ways of assessing the amount in the context of this deceased estate. It is of the same order as the amount which all parties agreed was appropriate provision for Antoine (and in practical terms, slightly more bearing in mind the difficulties associated with the property in Lebanon). It represents around one third of the estate today if one puts to one side the settlement with Antoine and costs. It represents just over half of the net distributable estate as calculated by the executors after provision is made for Antoine and costs. It represents twice the amount of estate funds spent by the executors to date, and approximately the amount all parties combined have spent on costs in this litigation.

24. [301]

    It is difficult to articulate calculations supportive of the conclusion I have reached. It is a “mixture of inextricable considerations”, to use Windeyer J’s language in a different area of discourse in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150; [1966] HCA 40. The nature of an order for provision by way of a buffer is that it is insusceptible to precise articulation: see Strang v Steiner [2019] NSWCA 143 at [150]-[151] and [191]; cf [88]-[89] but note [92]. Even so, in the interests of transparency, I note that in the course of reaching my conclusion, I have considered other awards. In particular, I have considered provision of $400,000. That would be less than a quarter of the likely proceeds of sale of the matrimonial home. In light of the length of the marriage, the need of Nejme, the relative absence of need of the competing beneficiaries (all save Antoine and Eva own homes to live in) and not least the mistreatment Nejme has suffered over the last 4 years and especially in the months preceding and following Ishac’s death, I concluded that $400,000 would not be sufficient provision out of this estate so as to constitute the “basic minimum” to which Young J referred in Paton v Public Trustee.

25. [302]

    Another way of testing the result I have reached is as follows. Aside from Antoine, whose needs are met by the settlement of this claim, no other sibling commands anything like the need of Nejme. As I have said, they speak English, they have lived in this country for most of their lives, and all save Eva (and to a lesser extent, George) have a substantial body of assets to look to as they approach old age. Nejme has none of that. True it is that the Campsie land was acquired, in part, with the assistance of financial contributions which, although relatively small, represented substantial donations from the siblings when they were young. On the other hand, Nejme shared her life with and cared for Ishac over 17 years, and contributed her social security earnings to the joint expenses of the household. Both in terms of time and in pecuniary terms, her contribution to the build-up of substantial assets held by a man who was never in paid employment for any of the 41 years he lived in this country exceeded that of any child.

26. [303]

    On the other hand, the amount of $500,000 may well be less than the amount which would be awarded in a claim by a widow in other circumstances. I am conscious of cases where a widow has received a life interest in the matrimonial home plus a fund to maintain her and to meet unforeseen contingencies. That roughly corresponds with the “broad general rule” to which Hallen J referred in Khreich v NSW Trustee & Guardian [2012] NSWSC 1299 at [112]:

27. [304]

    However, as his Honour observed by reference to Marshall v Carruthers [2002] NSWCA 47 and Clifford v Mayr [2010] NSWCA 6, the principle is not one of immutable application. Here I accept the executors’ submission that the fact that the siblings made appreciable contributions to the acquisition of the house and its refurbishment over many years tells against an order for provision which would deny to them the property or the proceeds of its sale for (potentially) many years. Against that, I also find that the conduct of those same siblings has adversely impacted upon the limited entitlement Nejme was to enjoy under Ishac’s will, both in terms of quiet possession of a home for 2 years, and in terms of delayed receipt of her share of the proceeds of its sale. Perhaps I am saying little more than that this is a highly unusual case, and only limited assistance may be derived from other claims by widows.

28. [305]

    I should add the following by way of avoidance of doubt. I have had regard to what has occurred to Nejme after Ishac’s death, notably the way in which her quiet possession of the Campsie home has been disturbed. I do so on the basis that both the finding of satisfaction required by s 59(1)(c) and the exercise of discretion under s 59(2) may and indeed must on occasion take into account subsequent events. This is no different from assessing the need of any applicant seeking a family provision order based on the evidence available at the time of the hearing. Were Antoine’s claim before me, I would assess it on the basis of the amputation of his leg below the knee, although that occurred after Ishac’s death. However, I have not, in determining the quantum of the order for family provision, sought to compensate Nejme for damage she has suffered as a result of the executors’ conduct, still less to punish them for their conduct. I was not asked to do so by Nejme, and it would be wrong to take such an approach without at least informing the executors that I contemplated doing so, and as presently advised I think it would be wrong in principle. The present proceeding is not some form of indirect mode of compensating Nejme for defamation, or for interference with possession, or for signalling disapprobation of the conduct of the executors or any of Ishac’s children. Indeed, it has repeatedly been said that “[t]he purpose of the jurisdiction is not the correction of the hurt feelings or sense of wrong of the competing claimants upon the estate of the testator” and “[t]he Court is obliged simply to respond to the application of the eligible person who was a member of the testator’s household and to consider whether, as claimed, the provision made by the will is inadequate for that person's proper maintenance and advancement in life”: see Heyward v Fisher (Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81), cited with approval in Golosky v Golosky (Court of Appeal, 5 October 1993) and Hertzberg v Hertzberg [2003] NSWCA 311 at [46].

29. [306]

    I should make one final point clear. The provision of $500,000 which I have concluded is appropriate reflects a total amount, and so allowance must be made for the interim distribution received by Nejme in 2020. On the other hand, the payment of rates and utilities throughout the two year period following Ishac’s death is so small in the scheme of things that it should be disregarded (and indeed I did not understand the executors to submit to the contrary).

30. [307]

    In addition to an order for provision in favour of Nejme, further orders are required. The Campsie property should have been sold many, many months ago. Despite the statements concerning its sentimental value, it is common ground that the property, built on land near to Campsie shops and now zoned high density R4, should not be repaired but should be sold as a development site. No extensive marketing campaign is required. It should have been obvious by the conclusion of the trial that the property needed to be sold. The executors have already retained real estate agents and a valuer for the purposes of this litigation, and even if they have not in the last fortnight retained an agent for the purposes of sale in accordance with their obligations under the will, they will be able to so almost immediately. I appreciate that Christmas approaches, and it may be advantageous to negotiate for an extended settlement in light of the summer break, and the regime I propose will accommodate that possibility. The regime which I will put in place when orders are made will be to grant liberty to apply, in the event that the executors have not within 8 weeks of today exchanged contracts with settlement to occur on or before 12 weeks thereafter, for orders for the appointment of replacement executors or trustees for sale. That timetable will enable any such application to be made before the end of term.

31. [308]

    I will permit the parties to be heard as to costs, and the form of order, which will include orders for provision to Nejme in a further amount of $462,000, and the scope of any application concerning the appointment of other executors or trustees for sale if the property is not sold within 8 weeks of today. I will also permit Clint to be heard, if he wishes, by way of either or both affidavit or submission, as to whether the Court should take further steps in relation to him.

32. [309]

    The proceeding will be stood over for the making of orders on Thursday 21 October 2021 at 9.30am. The parties should supply agreed orders, or the orders for which they contend, to my Associate by email by 5pm on Wednesday 20 October 2021. Finalising the administration of the estate is more urgent than the issue whether any further steps ought to be taken in relation to Clint, and if he seeks a greater period of time to be heard on the latter, I would be minded to accede to such application.