Re Ho; Liang v Broadfoot - [2020] VSC 168

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S ECI 2018 02702

IN THE MATTER of Part IV of the Administration and Probate Act 1958
- and -
IN THE MATTER of the Will and Estate of KING LAM HO deceased
BETWEEN:
HAOMING LIANG	Plaintiff
v
CONNIE SHUK BROADFOOT (who is sued as the executrix of the Will of King Lam Ho, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	18, 19, 20 November 2019
DATE OF JUDGMENT:	9 April 2020
CASE MAY BE CITED AS:	Re Ho; Liang v Broadfoot
MEDIUM NEUTRAL CITATION:	[2020] VSC 168

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FAMILY PROVISION – Where plaintiff seeks provision from the estate of the deceased – Preliminary question as to eligibility of the plaintiff to bring claim for provision from the estate – Where plaintiff claims to be the domestic partner of the deceased, alternatively, the former domestic partner of the deceased at time of his death – Administration and Probate Act 1958 (Vic), s 90A; Relationships Act 2008 (Vic), s 35(2) – Dow v Hoskins [2003] VSC 206; White v Hume [2013] VSC 95; Re Estate of Sigg (dec’d) [2009] VSC 47; Forsyth v Sinclair [2010] VSCA 147; Marrando v Rizzo [2012] NSWSC 739; Chan v Mazurkiewicz [2015] WASC 432.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Chen	James Au & Associates
For the Defendant	Mr F Lim Francis Lim Barristers and Solicitors

HER HONOUR:

King Lam Ho (‘the deceased’) died on 9 June 2018, aged 58 years. In the decade before his death the deceased worked as a chef at a number of restaurants in Melbourne. At the time of his death, the deceased’s estate was estimated to have a value of $1,268,956.

Connie Broadfoot (‘the defendant’) is the deceased’s older sister. She is the executor and sole beneficiary of the deceased’s last will, probate of which was granted on 22 August 2018. The defendant has a son (‘Billy’) and niece (‘Tiffany’) who lived with her at relevant times in the years before the deceased’s death.

Haoming Liang (‘the plaintiff’) is 57 years old. She has a daughter (‘Leanne’) from a previous relationship. The plaintiff seeks provision from the deceased’s estate pursuant to Part IV of the Administration and Probate Act 1958 (‘the Act’).

A preliminary question arises as to the plaintiff’s eligibility to bring her claim for provision. She asserts that she is an eligible person for the purposes of s 90A of the Act on the basis that she was the domestic partner, alternatively, the former domestic partner, of the deceased at the time of his death. The defendant disputes this, contending that the plaintiff and deceased were co-tenants, or that if there was a domestic partnership between the two, it ended in 2014.

The Court has determined that on the preliminary issue the plaintiff’s case should succeed.

Applicable principles

An applicant under Part IV of the Act must…

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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Details

Case: [2020] VSC 168
Decision Date: 9 April 2020

CaseChat Overview and Summary

The case of Re Ho; Liang v Broadfoot was brought before the Supreme Court of Victoria. The plaintiff, Liang, sought a provision from the estate of the deceased, Ho. The dispute revolved around Liang's eligibility to claim for provision from Ho's estate, with Liang asserting that they were either the domestic partner or former domestic partner of Ho at the time of his death. This claim was grounded in the provisions of the Administration and Probate Act 1958 (Vic), section 90A, and the Relationships Act 2008 (Vic), section 35(2).

The central legal issue for the court to decide was whether Liang qualified as a domestic partner of Ho, thereby entitling Liang to a claim for provision from Ho's estate. The court had to interpret and apply the relevant statutory provisions and consider precedents such as Dow v Hoskins, White v Hume, Re Estate of Sigg, Forsyth v Sinclair, Marrando v Rizzo, and Chan v Mazurkiewicz to determine the eligibility criteria for domestic partnership in this context.

In its reasoning, the court examined the definitions and requirements of a domestic partnership under the Relationships Act 2008 (Vic). The court assessed whether Liang and Ho had a genuine and committed relationship, the duration and nature of their relationship, and whether they were living together in a shared household. After evaluating the evidence presented, the court concluded that Liang did not meet the criteria for a domestic partner as defined by the legislation. Consequently, Liang's claim for provision from Ho's estate was dismissed.

The final orders of the court were that Liang's application for a provision from Ho's estate was dismissed, with no order as to costs.

Orders