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Sheen v Hesan

Sheen v Hesan

Case [2023] NSWSC 468 5 May 2023

De Facto Relationship

Family Provision Order

Intestacy

Adequate Provision

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Sheen v Hesan; The Estate of Zaheer [2023] NSWSC 468
Hearing dates: 21 – 23 March and 28 – 29 March 2023
Date of orders: 5 May 2023
Decision date: 05 May 2023
Jurisdiction: Equity
Before: Hallen J
Decision:
Direct the parties, within 14 days of these reasons being delivered, to provide in hard and soft copy, Short Minutes of Order that reflect these reasons.

Catchwords:
SUCCESSION — Contested application for administration of the intestate estate of the deceased, – Whether the Plaintiff a spouse of the deceased, being a party to a domestic partnership with him immediately before his death – Whether de facto relationship had ended prior to deceased’s death – Meaning of breakdown of de facto relationship
SUCCESSION – FAMILY PROVISION - Alternative claim for family provision order under the Succession Act 2006 (NSW), Ch 3 by Plaintiff – Claim by Plaintiff under s 57(1)(e) or s 57(1)(f) of Succession Act – Each ground of eligibility disputed – Whether factors warranting the making of the application – If not the spouse of the deceased, no provision made for Plaintiff under the operation of the rules of intestacy – Whether adequate and proper provision not made for the Plaintiff and, if not, the nature and quantum of the provision to be made for her
Order for provision made

Legislation Cited:
Civil Liability Act 2002 (NSW) s 15B
Civil Procedure Act 2005 (NSW) s 98(4)
Evidence Act 1995 (NSW) ss 30, 140(2)
Family Law Act 1976 (Cth) s 4AA(1)
Interpretation Act 1987 (NSW) s 21C
NSW Trustee and Guardian Act 2009 (NSW) s 23
Probate and Administration Act 1898 (NSW) ss 63, 86
Property (Relationships) Act 1984 (NSW) s 4(2)
Relationships Register Act 2010 (NSW)
Succession Act 2006 (NSW) ss 3, 57(1), 59, 60, 63(5), 65, 66, 72(1), 84, 101, 102, 103, 104, 105, 111, 129(1)
Succession Amendment (Intestacy) Act 2009 (NSW)
Supreme Court Rules 1970 (NSW) r 78.66

Cases Cited:
Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176
Amaca Pty Ltd v Novek [2009] NSWCA 50
Anderson v Teboneras [1990] VR 527
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Ashton v Pratt (No 2) [2012] NSWSC 3
Askew v Askew [2015] NSWSC 192
Ballam v Ferro [2022] NSWSC 1200
Bar-Mordecai v Hillston [2004] NSWCA 65
Bartlett v Coomber [2008] NSWCA 100
Bkassini v Sarkis [2017] NSWSC 1487
Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154
Blendell v Byrne; Estate of Noeline Joan Blendell [2019] NSWSC 583
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bouttell v Rapisarda [2014] NSWSC 1192
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Britt v Office of State Coroner [2022] WASCA 75
Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195
Chapple v Wilcox (2014) 87 NSWLR 646; [2014]…

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 Sheen v Hesan

Details

AGLC: Sheen v Hesan [2023] NSWSC 468
Case: [2023] NSWSC 468
Decision Date: 05 May 2023

CaseChat Overview and Summary

In the case of Sheen v Hesan, the court was asked to determine the rightful administration of the estate of a deceased individual. The primary dispute was whether the plaintiff, Sheen, who claimed to be in a de facto relationship with the deceased, Hesan, was entitled to administer the estate. The matter was heard in the Supreme Court of New South Wales. The plaintiff contended that she was the spouse of the deceased and, therefore, entitled to the estate. Alternatively, she sought a family provision order under the Succession Act 2006 (NSW), arguing that she was a de facto partner of the deceased and had not been adequately provided for in his will.

The court was required to decide if the plaintiff was indeed a spouse or de facto partner of the deceased at the time of his death, and if so, whether the de facto relationship had broken down before his death. The court also had to consider the factors under section 57(1)(e) or s 57(1)(f) of the Succession Act that warranted the making of a family provision order, including whether the plaintiff had been adequately provided for and the nature and quantum of the provision to be made.

The court found that the plaintiff was not the spouse of the deceased and that the de facto relationship had indeed broken down prior to the deceased's death. Therefore, the plaintiff was not entitled to the estate. However, the court did find that the plaintiff had not been adequately provided for and made an order for family provision under section 57(1)(f) of the Succession Act. The court ordered that a specified sum be paid to the plaintiff, considering the factors outlined in the Act.

Orders