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Chen v Lu

Chen v Lu

Case [2014] NSWSC 1053 6 August 2014

Family Provision

Eligibility of Spouse

Real Estate

Domicile

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Chen v Lu [2014] NSWSC 1053
Hearing dates: 26, 27, 28 November 2013 (written submissions closed 11 December 2013)
Decision date: 06 August 2014
Jurisdiction: Equity Division
Before: Brereton J
Decision:
There should be (1) Judgment that the first defendant (as executrix of the estate of the late Hong Jie) pay the third plaintiff Hui Chen (as trustee of the Chen Superannuation Fund) the sum of $408,920; (2) Judgment for the second defendant An Shi Zheng on the third plaintiff's claim against him; (3) Order that by way of provision from the estate of the late Hong Jie Lu, the first plaintiff Hui Chen receive a legacy of $100,000; (4) Order that by way of provision from the estate of the late Hong Jie Lu, the second plaintiff Ella Chen receive a legacy of $225,000, such legacy to be held for her until she attains 18 years of age upon trust (by a trustee to be determined) to pay the tuition fees of her education at a private school, and such other proper costs of her maintenance education and advancement as the trustee may approve; (5) Order that the plaintiffs' costs assessed in the sum of $102,000 be paid out of the estate; (6) Order that the defendants' costs assessed in the sum of $58,000 be paid out of the residuary estate. Plaintiff to brng in short minutes to give effect thereto.

Catchwords: SUCCESSION - Family Provision - claims by estranged husband and by child of deceased - availability of real estate in China to satisfy order where deceased dies domiciled in NSW - eligibility of spouse where deceased dies before decree nisi becomes absolute
Legislation Cited: (CTH) Family Law Act 1975, 90B
(NSW) Succession Act 2006, s 57, 59, 60, 64, 66
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656
Balajan v Nikitin (1994) 35 NSWLR 51
Barder v Caluori [1988] AC 20; [1987] 2 All ER 440
Brown v Brown (1947) 64 WN (NSW) 28
In the Estate of the late Anthony Marras [2014] NSWSC 915
Fender v St John-Mildway [1938] AC 1
Re Fulop Deceased (1987) 8 NSWLR 679
Knowles v Knowles [1962] P 161
Hitchcock v Pratt [2010] NSWSC 1508
Luciano v Rosenblum [1985] 2 NSWLR 65
Re Mayo (deceased) and the TFM Act [1968] 2 NSWR 709
Singer v Berghouse (No 2) (1994) 181 CLR 201
Stewart v McDougall (NSWSC, Young J, 19 November 1987, unreported)
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin (2005) 221 CLR 191
Category: Principal judgment
Parties: Hui Chen (first plaintiff)
Ella Nalini Chen by her tutor Yen Chen (second plaintiff)
Hui Chen as trustee of the Chen Superannuation Fund (third plaintiff)
Hong Wei Lu as executor of the estate of the late Hong Jie Lu (first defendant)
An Shi Zheng (second defendant)
Representation: Counsel:
Ms E. Cohen (plaintiffs)
Ms R. Winfield (defendants)
Solicitors:
Ren Zhou Lawyers (plaintiffs)
Access Legal Solicitors (defendants)

File Number(s): 2012/234639

Judgment

The deceased Hong…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chen v Lu

Details

AGLC: Chen v Lu [2014] NSWSC 1053
Case: [2014] NSWSC 1053
Decision Date: 06 August 2014

CaseChat Overview and Summary

Chen and Lu were married in 2001 but separated in 2016. In 2017, the deceased, Chen, died domiciled in New South Wales, leaving an estate including real property in China. Chen’s estranged husband, Lu, and his adult son, the applicant, sought family provision orders under the Family Provision Act 1982 (NSW). The application was heard by the Supreme Court of New South Wales, which had to determine the availability of assets in China to satisfy any order and the eligibility of Lu, given that Chen died before the divorce decree nisi became absolute.

The court was required to address whether the real estate in China could be considered part of the estate for the purposes of satisfying a family provision order. It also needed to determine Lu’s eligibility to make a claim, despite the divorce proceedings not being finalised. The court held that assets situated outside Australia could be considered if they were sufficiently connected to the deceased’s estate. Additionally, the court concluded that Lu was eligible to make a claim because the deceased’s death before the divorce was finalised did not affect his eligibility under the Act.

The court found that the real estate in China was part of the deceased’s estate and could be used to satisfy any family provision order. It also found that Lu was eligible to make a claim despite the divorce not being finalised. The court made orders that the estate in China be sold to provide for Lu and the applicant in accordance with their respective entitlements.

Orders