1. Declare that the Will dated 3 June 2016 (incorporating the Deed dated 3 June 2016 executed by the late Zi Li Cong and Yanjiao Shen) constitutes the valid last Will of the late Zi Li Cong (the deceased) and that the deceased had testamentary capacity at the time of execution of the said Will.
2. Order that probate in solemn form of the said Will dated 3 June 2016 (incorporating the Deed dated 3 June 2016 as a statement of the testamentary intention of the deceased) be granted to the named executors of the deceased (Yanjiao Shen and Edmund Bede Hao San Cong).
3. Order that the matter be remitted to a Registrar in Probate to complete the grant.
4. Declare that the Deed dated 3 June 2016 is unjust in all the circumstances and order pursuant to the Contracts Review Act 1980 (NSW) that the said Deed be set aside as against the first defendant.
5. Pursuant to s 59 of the Succession Act 2006 (NSW), order that provision be made out of the estate of the late Zi Li Cong in favour of the first and second plaintiffs in the sum of $700,000 each, in lieu of the provision made for the first and second plaintiffs under the deceased’s Will executed on 3 June 2016.
6. Designate as notional estate so much of the proceeds of sale of the properties at 16 Nicholson Street, Burwood and 43 Amy Street, Campsie as is necessary in order to make provision for the first and second plaintiffs in accordance with order 5 (i.e., up to $1.4 million).
7. Otherwise dismiss the plaintiffs’ amended statement of claim and the first and second defendants’ further amended cross-claim.
8. Reserve costs.
9. Direct the parties to file brief written submissions as to costs within 14 days with a view to dealing with the question of costs on the papers if possible.
10. Liberty to apply on 3 days’ notice if issues arise in the implementation of these orders.
Catchwords:
CONTRACTS — Construction — Good faith — Implication of terms — Contracts Review Act — Whether unjust in all circumstances
DEEDS — Standing to sue — Whether multi-party deed poll or inter partes deed — Trust of benefit of promise
EQUITY — Trusts and trustees — Express trusts — Intention to create — Resulting trusts — Presumption of advancement — Secret and half-secret trusts — Fraud on a power — Equitable fraud
EQUITY — Equitable defences — Unconscionable Conduct — Undue influence — Yerkey v Jones — Catching Bargains
SUCCESSION — Construction — General principles — Construction of Will and incorporated Deed — Contested probate — Testamentary capacity — Whether knowledge and approval of Will —…
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.
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Details
AGLC
Cong v Shen (No 3) [2021] NSWSC 947
Case
[2021] NSWSC 947
Decision Date
CaseChat Overview and Summary
In this case, the parties involved were Cong and Shen, with the dispute concerning various legal matters including contract construction, equity, succession, and family provision claims. The court had to determine the legal issues arising from the interpretation of a contract, the standing to sue in relation to a multi-party deed, the implication of terms of good faith, and the construction of a will and incorporated deed. The court also had to decide whether there was unconscionable conduct, undue influence, and if there was sufficient testamentary capacity.
The legal issues the court had to address involved the construction of a contract to determine whether it was unjust in all circumstances, the standing of a party to sue under a multi-party deed, and the implication of terms of good faith under the Contracts Review Act. The court also had to consider whether there was an express trust created and whether there was a resulting trust or presumption of advancement. The court examined whether there was an equitable defence of unconscionable conduct, undue influence, or catching bargains. Additionally, the court had to decide if there was sufficient testamentary capacity and whether there was a delusional optimism concerning the estate. The court also had to determine the doctrine of equitable election and whether an executor should be passed over for misconduct.
The court found that the contract was not unjust in all circumstances and that the plaintiff did not have standing to sue under the multi-party deed. The court also held that there was no implication of terms of good faith. In relation to the trust, the court found that there was no express trust created and no resulting trust or presumption of advancement. The court found that there was no unconscionable conduct, undue influence, or catching bargains. The court held that there was sufficient testamentary capacity and that there was no delusional optimism concerning the estate. The court also held that the doctrine of equitable election applied and that one of the named executors in the will should be passed over for misconduct.
The court ordered that Cong's claims for contract construction, standing to sue, implication of terms of good faith, and family provision be dismissed. The court also ordered that Shen's claims for unconscionable conduct, undue influence, catching bargains, testamentary capacity, and equitable election be dismissed. The court further ordered that one of the named executors in the will should be passed over for misconduct.