Executors sometimes find it difficult to remove an occupant from a property, especially where the person resides there with the will-maker’s consent.

The New South Wales Supreme Court recently had to consider whether executors had the right to end the occupation of an estate-owned residence by a person who claimed a lifetime right to reside there pursuant to an arrangement she made with the deceased.

iStock 162572924Ken Mackenzie died in November 2020, leaving a will appointing John McLachlan and Donal Mackenzie executors.

John and Donal obtained a grant of probate of the will and then became the registered proprietors of Ken’s residential property in Clara Street, Erskineville in inner-city.

Seham Alemaddine was resident at the address at the time of Ken’s death and had lived there for a considerable number of years.

The executors demanded Seham vacate and when she failed to do so, filed proceedings in the court seeking recovery of possession and the termination of Seham’s occupancy of the residence.

Seham, acting for herself, defended the claim on the basis that Ken – with whom she claimed to have been in a relationship – had told her on numerous occasions that she should treat the house as her own and she would be able to remain there as long as she liked.

She was – she swore – led to believe the house would be left to her by Ken on his death but did not bring any separate estate claim.

Her testimony was that she had also spent funds on improvements to the home but provided no hint as to what she provided to the deceased in return for its gift to her.

Justice David Davies noted that although Seham’s defence references the “germs of an agreement whereby the property was to be left to her,” it was not a defence to a claim for possession by the executors as registered proprietors.

His honour held that Seham’s defence must be struck out and made the order for possession the executors sought.

He also noted that the executors’ claims for damages for lost rent would be considered if evidence was provided and that claim pursued.

The decision demonstrates that executors can successfully seek the removal of an occupant from estate property in circumstances where the occupant – who may indeed have a valid claim against the estate – has not sought establish an interest sufficient to resist removal.

It is likely now too late for Selham to begin an estate claim for an order that she be granted the interest in the home that she contends for.

Had she taken expert legal advice when the executors’ claims were first raised, the outcome for her may have been very different.

McLachlan v Alameddine [2022] NSWSC 1292 Davies J, 26 September 2022 Read case