In this proceeding the plaintiff, Anthony Lennan (Anthony), seeks orders under Part IV of the Administration and Probate Act 1958 (the Act) for provision to be made for him from the estate of his former domestic partner, Fay Ping Chao (Ping)[1] who died on 1 July 2022 at 45 years of age as a result of metastatic breast cancer.
[1]In the interests of clarity and without intending any disrespect to the parties, in these reasons for judgment I have generally referred to the parties and witnesses by their first names.
The only provision made for Anthony under Ping’s last will dated 11 March 2022 (the Will) was a stipulation that, if a binding death benefit nomination made by Ping in respect of her superannuation benefit failed, and her superannuation was paid into her estate, those benefits were to be paid to him. In the events that occurred, Anthony has in fact received Ping’s superannuation death benefit in the sum of $378,164.89.
Under the terms of the Will, Ping’s estate is distributed between her two siblings: her brother Tat Woon Chao (Tat Woon) and her sister Fay Lin Chao…
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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Lennan v Chao [2025] VSC 220
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[2025] VSC 220
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CaseChat Overview and Summary
In this proceeding, the plaintiff, Anthony Lennan, sought orders under Part IV of the Administration and Probate Act 1958 (the Act) for provision to be made for him from the estate of his former domestic partner, Fay Ping Chao, who died on 1 July 2022. The only provision made for Anthony under Ping’s last will dated 11 March 2022 was a stipulation that, if a binding death benefit nomination made by Ping in respect of her superannuation benefit failed, and her superannuation was paid into her estate, those benefits were to be paid to him. Anthony sought that he be given an absolute interest in a unit located at 11/285 Tooronga Road, Glen Iris, or an equivalent capital sum. The defendants conceded that the relationship between Ping and Anthony was a domestic partnership so as to make Anthony a person eligible to bring a claim for further provision under the Act. They also conceded that, at the time of her death, Ping had a moral duty to provide for Anthony’s proper maintenance and support. The focus of the proceeding was accordingly on whether the distribution of Ping’s estate fails to make adequate provision for Anthony’s proper maintenance and support, being the remaining matter of which the Court must be satisfied before any family provision order can be made. For the reasons which follow, I have determined that this question is to be answered in the negative, with the consequence that the application must be dismissed. The evidence established that Ping and Anthony met on a blind date in May 2013 and began a relationship soon thereafter. It was accepted that Ping and Anthony enjoyed a loving and caring relationship for about nine years, but their relationship only had the character of a domestic relationship from about March 2019, being a period of about three years and four months before Ping’s death. It was also accepted that Anthony had not been living with Ping at Tooronga Road as a couple on a genuine domestic basis and that he had not been financially dependent or interdependent on Ping. Anthony was a qualified information technology professional who had worked in the capacity of ‘infrastructure architect’ or ‘infrastructure domain architect’ for several years at the University of Melbourne. Anthony’s annual income over the past six financial years had been as follows: $147,558 in 2018-19; $97,639 in 2019-20; $50,291 in 2020-21; $229,164 in 2021-22; $157,389 in 2022-23; and approximately $200,000 in 2023-24. At the date of trial, the total value of Anthony’s superannuation benefits was $425,588. Separately to his superannuation, Anthony also had savings of approximately $550,000 (which includes Ping’s death benefit of $378,164.89). Anthony also agreed in evidence that, on the basis of his income of recent years, he had the capacity to save between $60,000 - $70,000 per annum. Although Anthony gave evidence to the effect that he had assisted with Parslow Street by contributing to the maintenance of the property, these activities were of minor significance given the property’s value; no submission was ultimately advanced that he contributed to building up Ping’s estate. However, it is clear that Anthony made a significant contribution to Ping’s welfare by being closely involved in her care and by supporting her quality of life throughout the period of her treatment for cancer, including in the last months of her life as her health deteriorated. In determining whether the deceased has fulfilled her moral duty, and the extent of any provision to be ordered, the Court must have regard to the relative concepts of ‘adequate’ and ‘proper’. Adequacy is assessed by reference to the Court’s inherent knowledge and inquiry into current social conditions and standards. In this context, it is necessary that an applicant demonstrate need in order to be successful in his or her claim; mere proof of a moral duty is not in itself adequate. However, an applicant is not required to show that his or her circumstances are destitute and, as such, the need is ‘not restricted to the requirements of basic necessity or sustenance’. The assessment calls for an instinctive synthesis of the relevant considerations and is not an exercise involving precise mathematical calculations. The continuing applicability of the above principles to Part IV of the Act in its current form was confirmed by the Court of Appeal in Gash v Ruzicka. In considering what is necessary for proper maintenance and support the Court must assume the position of a ‘wise and just’ testator judged by current community standards. However, the Court should not be drawn into rewriting the testator’s will by reference to general considerations of fairness. Although Anthony had not been living with Ping at Tooronga Road as a couple on a genuine domestic basis, he had provided important care and support to Ping before her untimely death. However, he is now approaching middle age, but does not own any real property to secure his future living and accommodation needs. Although Ping’s estate is substantial, and there are no competing needs on her bounty, I am not satisfied that Ping breached her moral duty to Anthony by the provision she made for him in the Will. I accordingly dismiss the application with costs.