Lennan v Chao

In the Supreme Court of Victoria, Anthony Lennan, the former domestic partner of the deceased, Fay Ping Chao, sought additional provision from her estate under the Administration and Probate Act 1958. The court had to determine whether the estate's distribution failed to make adequate provision for Anthony's proper maintenance and support. The defendants, Tat Woon Chao and Fay Lin Chao, who are Ping's siblings and the executors of her estate, conceded that Anthony was a domestic partner and that Ping had a moral duty to provide for Anthony's maintenance and support at the time of her death. The primary focus of the proceeding was whether the estate's distribution made adequate provision for Anthony's proper maintenance and support.

The court considered several factors, including Ping's testamentary intentions, the nature and length of Anthony and Ping's relationship, the size and nature of the estate, and Anthony's financial resources and needs. The court found that Ping and Anthony's relationship only had the character of a domestic partnership from about March 2019, a period of about three years and four months before Ping's death. The court also determined that, although Ping's estate was substantial, it was not large enough to engage the principles relating to large estates. Furthermore, the court found that Anthony did not have a demonstrated need for additional provision from the estate, as he had significant financial resources, including savings and superannuation, and the capacity to purchase property of a similar value to Tooronga Road, the property at the centre of the dispute.

The court concluded that Ping had exercised her freedom of testation in an informed and deliberate manner, considering all persons who might have a claim on her bounty. Ping had decided to leave Anthony her superannuation entitlements, which amounted to a substantial sum of $378,164.89. The court was not satisfied that the distribution of Ping's estate failed to make adequate provision for Anthony's proper maintenance and support. Therefore, Anthony's application under Part IV of the Act was dismissed.

The court's decision emphasised the importance of respecting the deceased's testamentary freedom and the need for a clear demonstration of need by the applicant to justify a family provision order. The court's approach was guided by the principles of adequacy and proper maintenance, considering the circumstances of each case and the testator's intentions as expressed in the will and any other relevant evidence. The decision highlights the balance between the testator's right to dispose of their property as they see fit and the court's discretion to intervene where there is a failure to make adequate provision for the proper maintenance and support of eligible persons.