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Pang v Fong

Pang v Fong

Case [2014] NSWSC 1425 17 October 2014

Family Provision

Notional Estate Order

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Supreme Court

New South Wales

Medium Neutral Citation: David Lai Kan Pang v Susan Wai Wah Fong [2014] NSWSC 1425
Hearing dates: 30 June, 1 July, 15 August 2014
Decision date: 17 October 2014
Jurisdiction: Equity Division
Before: Robb J
Decision:
(1)The plaintiff is directed (after discussion with the defendants) to submit to the court draft short minutes of order to give effect to these reasons for judgment.
(2)Directions will be made concerning the future conduct of the proceedings.

Catchwords: SUCCESSION - family provision and maintenance - failure by testator to make adequate provision for the proper maintenance and advancement in life of the applicant - some provision for plaintiff in will - nominal amount in actual estate - significant sacrifice by plaintiff for the benefit of the deceased - sacrifice contributed significantly to the estate of the testator - whether a notional estate order should be made - no evidence to support competing claims by other beneficiaries of testator's will
Legislation Cited: Evidence Act 1995 (NSW) ss 69(3)(a), 102, 135(b) - (c)
Succession Act 2006 (NSW)
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Aubrey v Kain [2014] NSWSC 15
Blore v Land [1960] HCA 73; (1960) 104 CLR 124
Butler v Morris [2012] NSWSC 748
McCosker v McCosker (1957) 97 CLR 566
Raiola v Raiola [2014] NSWSC 967
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 20
Szlazko v Travini [2004] NSWSC 610
Underwood v Gaudron [2014] NSWSC 1055
West v Mann [2013] NSWSC 1852
Category: Principal judgment
Parties: David Lai Kan Pang (plaintiff)
Susan Wai Wah Fong (first defendant)
Eva Susan Fong (second defendant)
Representation: Counsel: V Hartstein (plaintiff)
M Sneddon (first and second defendants)
Solicitors: Summit Legal (plaintiff)
Lee Hourigan & Brooks (first and second defendants)

File Number(s): 2013/144328

Judgment

The parties

The plaintiff, Mr David Lai Kan Pang, is now 74 years old, having been born in Shanghai in what is now The People's Republic of China on 17 October 1939.

Mr Pang's father, Mr Chang Shang Pang, died on 14 May 2012. At that date he was 97 years old, having been born in China on 15 November 1914. I will refer to the deceased as "the father".

The plaintiff has one sister, Ms Susan Wai Wah Fong, who was born in China on 20 November 1940, also in Shanghai.

The father's will and estate

The father made his last will on 17 December 2003. Relevantly, by clause 2 of his will the father appointed Ms Susan Fong, and her daughter (and his granddaughter) Ms Eva Susan Fong, as his executors and trustees under the will. Ms Susan Fong and Ms Eva Fong are the defendants to these proceedings.

By clause 3 of his will the father gave his estate, after payment of all of his just debts, funeral and testamentary expenses, to such of eight people who survived him as tenants in common in equal shares. Those eight people were the plaintiff, the two defendants, the plaintiff's two daughters, being…

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 Pang v Fong

Details

AGLC: Pang v Fong [2014] NSWSC 1425
Case: [2014] NSWSC 1425
Decision Date: 17 October 2014

CaseChat Overview and Summary

The case of Pang v Fong involved a dispute over family provision and maintenance under the Succession Act 2006 (NSW). The applicant, Pang, sought additional provision from the estate of her deceased father, Fong, arguing that Fong had failed to make adequate provision for her proper maintenance and advancement in life. While Fong had made some provision for Pang in his will, the amount was nominal compared to the total estate. Pang claimed that she had made significant personal sacrifices for Fong's benefit, which had substantially contributed to the estate's growth. The court was required to determine whether a notional estate order should be made under section 46 of the Succession Act.

The court considered whether Pang's sacrifices constituted a significant contribution to the estate, warranting additional provision. The judge assessed the nature and extent of Pang's contributions, including financial support and care, against the total estate. The court also examined the adequacy of the provision made in the will and the competing claims of other beneficiaries. Ultimately, the court found that Pang's sacrifices were substantial and that the provision made in the will was inadequate. Given the lack of evidence supporting competing claims from other beneficiaries, the court determined that Pang was entitled to additional provision from the estate.

The court granted Pang an order for additional provision from the estate, recognising the significant contributions she made to the growth of the estate. The specific amount of the provision was to be determined by a subsequent assessment. This decision highlighted the importance of considering the individual circumstances of each beneficiary and the potential for a notional estate order when the will's provisions are deemed inadequate. The court's ruling underscored the need for testators to make adequate provision for their dependents, taking into account their contributions to the estate.

Orders