Kok Bin Lee v Choo Leong Neoh as executor of the estate of Saw Ean Susan Ong
[2024] WASC 467
•13 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: KOK BIN LEE -v- CHOO LEONG NEOH as executor of the estate of SAW EAN SUSAN ONG & ORS [2024] WASC 467
CORAM: MASTER RUSSELL
HEARD: 12 SEPTEMBER 2024, FURTHER EVIDENCE FILED ON 1 NOVEMBER 2024
DELIVERED : 13 DECEMBER 2024
FILE NO/S: CIV 1340 of 2023
BETWEEN: KOK BIN LEE
Plaintiff
AND
CHOO LEONG NEOH as executor of the estate of SAW EAN SUSAN ONG
First Defendant
CHOO LEONG NEOH as beneficiary of the estate of SAW EAN SUSAN ONG
Second Defendant
LIN LIN NEOH
Third Defendant
Catchwords:
Wills and estates - Application for orders under s 6(1) of the Family Provision Act 1972 (WA) - Agreement between the parties - Exercise of court's discretion to make orders sought - Turns on own facts
Legislation:
Family Provision Act 1972 (WA), s 6(1), s 7(1)(a), s 7(1)(c), s 7(2), s 12(2)
Result:
Application granted
Orders made for provision
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr R J Squires |
| First Defendant | : | Mr T J L Tan |
| Second Defendant | : | Mr T J L Tan |
| Third Defendant | : | Mr V Lo |
Solicitors:
| Plaintiff | : | Bechelet & Co |
| First Defendant | : | Tan & Tan Lawyers |
| Second Defendant | : | Tan & Tan Lawyers |
| Third Defendant | : | VL Legal |
Case(s) referred to in decision(s):
Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12
Lemon v Mead [2017] WASCA 215
Musasghi v Gebremariam [2022] WASCA 37
Schaechtele v Otto Wilhelm Schaechtele as executor of the Will of Maria Regina Grundner-Schaechtele [2008] WASC 148
MASTER RUSSELL:
Introduction
This application concerns the estate of the late Saw Ean Susan Ong (also known as Saw Ean Ong) (Deceased), who died on 14 June 2019 leaving a will dated 13 April 2018 (Will).
The plaintiff, Kok Bin Lee (also known as Kelvin Lee) was the Deceased's de facto partner. By originating summons filed on 5 April 2023, he applies for provision from the Deceased's estate, pursuant to s 6 of the Family Provision Act 1972 (WA) (Act).
Choo Leong Neoh is the Deceased's son. He is the first defendant in his capacity as the executor of the Deceased's estate. Orders were made on 10 September 2024 adding him as second defendant in his capacity as beneficiary of the estate.
Lin Lin Neoh is the Deceased's daughter. She filed a third party notice on 12 April 2024 and was joined as a third party to the proceeding. By orders made on 10 September 2024, she was added as the third defendant and named as such in the proceeding, instead of as 'third person.'
With no disrespect to any of the parties, I will refer to them as they have been referred to in the submissions, as Kelvin, Neoh and Lin Lin.
In this proceeding, Kelvin seeks orders that provision be made for his proper maintenance, support, and advancement in life pursuant to s 6 of the Act, and that the distribution of the Deceased's estate be altered to provide such provision.
Lin Lin also seeks provision from the Deceased's estate for her proper maintenance, support, and advancement in life. On 12 September 2024, I made an order pursuant to s 12(2) of the Act that the application by the plaintiff (Kelvin) for provision pursuant to s 6 of the Act also be treated as an application on behalf of the third defendant (Lin Lin).
A resolution of Kelvin's and Lin Lin's applications for provision has been agreed between the parties under a deed of family arrangement signed by each of them dated 3 November 2023 (Deed). The agreement reached is also reflected in an updated memorandum filed on 13 December 2024 recording the parties' consent to orders being made to give effect to their agreement, subject to the court's approval upon being satisfied that it is appropriate to exercise its discretion to grant the agreed relief.
In support of the applications and the orders sought, Kelvin relied on an affidavit affirmed by him on 29 March 2024 and Lin Lin on an affidavit sworn by her on 27 February 2024. The facts stated in those affidavits are not disputed and are helpfully summarised in the plaintiff's outline of submissions filed in support of the applications on 6 September 2024.
I heard the applications on 12 September 2024 and made orders that Lin Lin file and serve a further affidavit deposing to her personal and financial circumstances in support of her application. The application was otherwise adjourned to be determined on the papers.
The time for Lin Lin to file her further affidavit was extended by consent and, she filed her further affidavit on 1 November 2024.
For the reasons that follow, having considered the evidence filed in support of the applications, including Lin Lin's further affidavit, I am satisfied that it is appropriate for the court to exercise its discretion to make the orders sought for provision to be made for Kelvin and Lin Lin from the Deceased's estate under s 6(1) of the Act to give effect to the settlement agreed between the parties.
Relevant factual background
The following relevant factual background is derived from the affidavits filed in support of the application.
The Deceased had assets, including real property in Penang, Malaysia and in Western Australia.
Under the Will, the beneficiaries of the Deceased's estate are her son, Neoh, the first and second defendant, and her nephew, Beng Choong Tan (Beng). Beng was also appointed as executor together with Neoh. As referred to, probate was granted to Neoh on 7 October 2022. Leave was reserved to Beng to apply.
By the Will:
(a)Beng is to receive the Deceased's share of a property located in Penang, Malaysia; and
(b)Neoh is to receive the balance of the Deceased's estate.
The Will makes no provision for Kelvin or Lin Lin.
The Deceased's Statement of Assets and Liabilities attached to Kelvin's affidavit discloses that the net value of the Deceased's estate in Western Australia is $334,981. This includes a vehicle worth $8,000, cash in the bank of approximately $13,358, a residential unit located on Christmas Island valued at $220,000 (Christmas Island Unit), a property in Queens Park worth approximately $440,000 (Queens Park Property) encumbered by a debt of $347,377 owing to Westpac.[1] The equity in that property is approximately $100,000.
[1] Submissions [18].
Lin Lin deposes that, in 2009, she wanted to buy a home for her mother (the Deceased) to live in. They looked for a property together and decided to purchase the Christmas Island Unit for $150,000. At that time, Lin Lin had $75,000 in cash to put towards the purchase price and planned to take out a mortgage for the balance of the purchase price. Lin Lin deposes that her mother accepted the $75,000 as a gift but said she would fund the balance by taking out a mortgage in her own name.
Lin Lin says that she and her mother had an understanding that the Christmas Island Property would pass to Lin Lin on her mother's death. Lin Lin does not believe her mother intended to give her property in Western Australia to her brother as well as her property in Penang and make no provision for her.
Kelvin
Kelvin is 70 years old. He was in a de facto relationship with the Deceased for 17 years (since 2002).
Kelvin has resided in the Christmas Island Unit together with the Deceased since 2013 and continues to live there. He is close to retirement and deposes to having net assets of approximately $250,000.[2]
[2] Kelvin Affidavit [12] - [15].
While Kelvin is currently employed, he has little if any surplus after covering his living expenses.[3]
[3] Submissions [21].
Kelvin seeks provision from the Deceased's estate to enable him to continue living at the Christmas Island Unit and retain sufficient assets to fund a comfortable life in retirement. I accept that, on the evidence before the court, it is doubtful that Kelvin would be able to fund alternative accommodation and a comfortable life in retirement without provision being made for him from the Deceased's estate.
Lin Lin
Lin Lin's age is not in evidence. However, I am satisfied on the evidence before the court that she is over 18 years of age. She and Neoh are described as the Deceased's adult children.
Lin Lin lives in Christmas Island with her husband and their youngest daughter, who is 12 years old. They have two adult daughters aged 19 and 21 years, who are presently studying at universities in Perth and live in a property owned subject to a mortgage by Lin Lin and her husband. Lin Lin and her husband also continue to support their adult daughters financially.
Lin Lin describes herself as a homemaker, having ceased work to care for her youngest daughter. Her husband earns a taxable income of approximately $120,000 per annum.
Lin Lin and her husband also own a property in Armadale, Western Australia subject to a mortgage and a property in Christmas Island, which are rented out. They receive a total weekly rent of approximately $900.
The combined monthly loan repayments on the mortgaged properties are approximately $2,827. Lin Lin deposes that the cost of living in Christmas Island is very high. The family's living expenses are approximately $4,000 per month.
Under the terms of the Deed of Family Arrangement the parties have agreed, in effect, that:
(a)the Christmas Island Unit be transferred to Lin Lin, subject to Kelvin having a life interest. The life interest is subject to the terms of the Deed and is to terminate without any right of substituted residence upon the earlier of Kelvin's death or Kelvin moving out of the Christmas Island Unit;
(b)the Queens Park Property is to be transferred to Kelvin. If Kelvin cannot successfully refinance the Westpac loan into his own name, the Queens Park Property is to be sold, and Kelvin is to receive the net proceeds of sale after discharge of the Westpac loan; and
(c)all remaining personal property in the Deceased's estate is to be divided equally between Kelvin and Lin Lin with each to receive half of the remaining cash at bank.
The agreement reached does not seek to disturb the gift in the Will that leaves the Deceased's share of the Penang property to Beng.
The provision sought by Kelvin and Lin Lin is proposed to be borne from the residue of the Deceased's estate that would otherwise be distributed under the Will to Neoh.
The agreed settlement will allow Kelvin to continue living in the Christmas Island Unit rent free and means he will receive additional property with an estimated value of approximately $100,000, being the equity in the Queens Park Property and half of the estate's cash at bank.[4]
[4] Submissions [35].
It is submitted that the agreement reached between the parties would see Lin Lin receive the Deceased's fee simple interest in the Christmas Island Unit worth approximately $220,000 (subject to Kelvin's life interest), as well as half of the cash at bank held by the Deceased's estate after payment of agreed estate expenses, which is estimated to equate to approximately $5,000.[5]
[5] Submissions [36].
Determination
I am satisfied, on the evidence before me, that both Kelvin and Lin Lin have standing to bring their application pursuant to s 7(1)(a) and s 7(1)(c) of the Act respectively, with Kelvin being the de facto partner of the Deceased immediately before her death, and Lin Lin being a child of the Deceased.
Probate of the Will was granted on 7 October 2022. The proceedings were commenced by originating summons on 5 April 2023 within the time limit prescribed by s 7(2) of the Act.
I accept the submissions made on behalf of Kelvin that the disposition of the Deceased's estate effected by the Will is not such as to make adequate provision for his proper maintenance, support or advancement in life, in terms of s 6(1) of the Act and applying the two-stage process as set out in Lemon v Mead[6] and Musasghi v Gebremariam,[7] and recently summarised in Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod.[8]
[6] Lemon v Mead [2017] WASCA 215 (Buss P, Mitchell JA, Beech JA) [46] - [83].
[7] Musasghi v Gebremariam [2022] WASCA 37 (Quinlan CJ, Buss P, Kenneth Martin J) [107] ‑ [121].
[8] Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 (Keremestevski) (Quinlan CJ, Vandongen JA and Seaward J) [44] ‑ [50].
The Will does not provide Kelvin with any right to continue living in the Christmas Island Unit and his financial position is not such as to enable him to fund alternative accommodation and live comfortably in retirement.
The agreed settlement provides Kelvin with the ability to continue living in the Christmas Island Unit rent-free for so long as he wishes or is able, and results in him receiving additional property with an estimated net value of about $100,000. That is the equity in the Queens Park Property and half of the estate's cash at bank. The net value of the estate is estimated to be about $334,000. I accept the submission that, in all of the circumstances, such provision falls within the bounds of a reasonable exercise of the court's discretion.
The agreed settlement provides Lin Lin with the fee simple interest in the Christmas Island Unit worth about $220,000, subject to Kelvin's life interest, and cash of approximately $5,000. Given the modest value of the estate and the provision to be made for Lin Lin, I am satisfied that this falls within the bounds of a reasonable exercise of the court's discretion in the circumstances.
I have also taken into account that the parties have reached an agreement as a result of a mediated settlement. As stated by Le Miere J in Schaechtele v Otto Wilhelm Schaechtele as executor of the Will of Maria Regina Grundner-Schaechtele,[9] there is a clear public interest in resolving matters such as this by agreement, and the court should approve an agreed settlement if it is appropriate to do so.
[9] Schaechtele v Otto Wilhelm Schaechtele as executor of the Will of Maria Regina Grundner-Schaechtele [2008] WASC 148 (Le Miere J) [6].
There is limited evidence before the court as to Neoh's personal and financial circumstances. Lin Lin deposes that she does not know the full extent of Neoh's circumstances but is aware he is financially stable. She states that he owns an unencumbered apartment in Penang and recently sold another unencumbered apartment in Penang and received the proceeds of that sale, however, there is no evidence as to the value of either property.
Having agreed to the terms of the settlement and the orders sought, I accept the submissions that I can, and I do, infer that Neoh has no competing need for provision from the Deceased's estate.
Conclusion and orders
For these reasons, I am satisfied that is appropriate for the court to exercise its discretion to make orders for provision for Kelvin and Lin Lin pursuant to s 6(1) of the Act, and to make orders to give effect to the settlement as agreed between the parties in the Deed.
Orders will be made substantially in the terms of the memorandum of consent orders filed by the parties on 13 December 2024, as follows:
1.Pursuant to section 6 of the Family Provision Act 1972 (WA) (Act), provision be made for the proper maintenance, support and advancement in life of both the plaintiff, Kok Bin Lee, and the third defendant, Lin Lin Neoh, from the estate of the late Saw Ean Susan Ong (Estate) by way of alteration to the distribution of the Estate such that it be distributed as if the will of Saw Ean Susan Ong made on 13 April 2018 (Will) had been amended by codicil (in accordance with section 10 of the Act) to:
(a) insert a new clause 3A of the Will, immediately after the conclusion of clause 3, reading:
"3A (a) I grant my de facto partner Kok Bin Lee a life interest in the property located at Unit 8, 38 Poon Saan Road, Christmas Island, Western Australia, more particularly described as Lot 20 on Strata Plan 25129 on Certificate of Title Volume 2015 Folio 676 (Christmas Island Property) from the date of my death until Kok Bin Lee dies or is no longer willing or able to reside in the Christmas Island Property with no requirement to pay any rent during the term of the life interest. Kok Bin Lee is to be responsible for paying all outgoings in respect of the Christmas Island Property and is required to insure the Christmas Island Property with a reputable insurer during the term of the life interest.
(b) Subject to the life interest granted by clause 3A (a), I give any right title and interest I hold in the Christmas Island Property to my daughter Lin Lin Neoh, subject to all and any other encumbrances."
(b) insert a new clause 3B of the Will, immediately after the conclusion of the new clause 3A, reading:
"3B I give any right title and interest I hold in the property located at 197 Wharf Street, Queens Park, Western Australia more particularly described as Lot 1 on Survey-Strata Plan 63305 on Certificate of Title Volume 2830 Folio 843 (Queens Park Property) to Kok Bin Lee subject to all and any encumbrances. If my executor instead sells the Queens Park Property with Kok Bin Lee's consent, I give Kok Bin Lee the net proceeds of sale."
(c) delete clause 4 of the Will and replace it with a new clause 4 reading:
"4 I devise and bequeath that all cash in hand and money in any savings account(s), current account(s), fixed deposit account(s) and/or investment account(s) maintained with any bank or financial institution or licensed corporation/company to my executor to hold on trust to distribute as follows:
(a) to give fifty percent of the monies held by me in any authorised deposit taking institution in Australia to Kok Bin Lee;
(b) to give the remaining fifty percent of the monies held by me in any authorised deposit taking institution in Australia to Lin Lin Neoh; and
(c) to give the balance, if any, to my son Choo Leong Neoh."
2.A certified copy of these orders be made upon the probate of the Will and, within 7 days of the date of these orders, the first defendant is to produce the grant of probate to the court for that purpose.
3.The proceedings are otherwise dismissed.
4.No order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AP
Associate to Master Russell
13 DECEMBER 2024
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