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Lee v Lee

Lee v Lee

Case [2021] NSWSC 808 2 July 2021

Family Provision

Quantum of Provision

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Lee v Lee; The Estate of Raymond William Lee [2021] NSWSC 808
Hearing dates: 2, 3 and 4 March 2021; Final written submissions received 25 May 2021
Date of orders: 2 July 2021
Decision date: 02 July 2021
Jurisdiction: Equity
Before: Kunc J
Decision:
Provision ordered; Possession ordered; Will rectified

Catchwords:
SUCCESSION — Family provision — Claim by adult child — Quantum of provision to be made

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)

Cases Cited:
Barbuto v Barbuto [2019] NSWSC 1023
Bowers v Bowers [2020] NSWSC 109
Camernik v Reholc [2012] NSWSC 1537
Estate of Aspasia Kandros [2019] NSWSC 757
Sammut v Kleeman [2012] NSWSC 1030
Smith v Johnson [2015] NSWCA 297
Taylor v Farrugia [2009] NSWSC 801

Category: Principal judgment
Parties: Kathryn Lee (Plaintiff)
Margaret Lee (Defendant)
Representation:
Counsel:

K Lee (Plaintiff in person)
T Catanzariti (Defendant)

Solicitors:
Pollack Greening & Hampshire (Defendant)

File Number(s): 2019/310419 (Probate); 2019/323578 (Family Provision); 2020/160944 (Possession)
Publication restriction: Nil

Judgment

This judgment resolves three proceedings which relate to the estate of the late Raymond William Lee (the Estate). Mr Lee (the Deceased) died on 24 November 2018. He was survived by his wife of over 50 years, Margaret Lee, and their three children. For convenience and without disrespect, I will refer to members of the Lee family by their first names.
The Deceased made a will dated 30 April 2008 (the Will). The Will left the Estate to Margaret but omitted to name an executor. The Deceased’s eldest daughter, Kathryn Lee, has brought proceedings against her mother claiming family provision from the Estate under the Succession Act 2006 (NSW) (the Act). Margaret has brought proceedings in probate seeking rectification of the Will to appoint her as executor and a cross-claim for possession of the property at XX Islay St, Maclean, NSW (the Islay St Property).
Kathryn’s solicitor filed a notice of intention to cease to act on 10 September 2020. From that time, Kathryn has not had legal representation and she appeared in person at the hearing before me. Margaret was represented by Ms T Catanzariti of Counsel. The proceedings were heard in Ballina because Kathryn said her health did not permit her to travel to Sydney.
On 21 September 2020, Lindsay J ordered that the proceedings be heard together and that evidence in one be evidence in the others. By those orders, Lindsay J also granted Margaret special letters of administration to allow her to act as the Estate’s executor for the purposes of the proceedings.
The primary issue for the Court to resolve in these proceedings was the provision which should be ordered for Kathryn under the Act (Margaret having accepted that the Will made inadequate provision for Kathryn, in that it made no provision for her). It was also necessary for the Court to determine the terms on which a writ of possession for the Islay St Property should be granted to Margaret, and whether the 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.

Continue reading Lee v Lee

Details

AGLC: Lee v Lee [2021] NSWSC 808
Case: [2021] NSWSC 808
Decision Date: 02 July 2021

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Lee v Lee involved a dispute over family provision claims under the Succession Act 1981. The deceased, Mr Lee, passed away leaving an estate which included a family home. His adult daughter, Ms Lee, claimed a portion of the estate under the family provision provisions, arguing that she had been financially dependent on her father and was in need of financial support. The executors of the estate contested the claim, asserting that adequate provision had already been made for Ms Lee.

The court was tasked with determining the appropriate quantum of provision under the family provision legislation. The primary legal issue was whether the daughter's claim met the statutory criteria, including whether she had been inadequately provided for under the will and whether there was just and reasonable cause to vary the dispositions of the will. The court had to weigh the competing interests of the deceased's wishes as expressed in the will and the statutory rights of family members to make provision for them.

The court found that Ms Lee's claim met the criteria for a family provision order. It was held that the daughter had been inadequately provided for under the will and that there were just and reasonable grounds to vary the dispositions. The court noted that Ms Lee had been financially dependent on her father for an extended period and that she had substantial needs. While considering the deceased's intentions, the court concluded that the statutory rights of family members to make provision for them should be upheld in this case. Consequently, the court ordered that a portion of the estate be transferred to Ms Lee to meet her financial needs.

Orders