Ta v Ta - [2007] NSWSC 773

CITATION: Ta v Ta [2007] NSWSC 773

HEARING DATE(S): 30/04/07; 2/07/07

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 2 July 2007

DECISION: Plaintiff to receive a legacy of $700,000 and is entitled to her full costs.

CATCHWORDS: GIFTS [7]- Gifts inter vivos- Testator and his wife presented with two paintings- Testator purports to leave paintings by his will to his children- A gift to a married couple is a gift to them jointly unless circumstances are otherwise demonstrated- Paintings are property of wife by survivorship- Not part of testator's estate. SUCCESSION [310]- Family provision application- Application by plaintiff widow- Estate value $813,000- Will grants plaintiff three-tenths of estate- Widow only person in need- Provision inadequate for plaintiff's future housing needs- Legacy of $700,000 appropriate.

LEGISLATION CITED: Family Provision Act 1982
Married Persons (Property and Torts) Act 1901
Married Women's Property Act 1882 (UK)

CASES CITED: Conway v Conway [1966] 4 South African Law Reports 225
Ex parte Ferguson (1915) 33 WN (NSW) 121
Hichens v Hichens [1945] P 23
McDonald v McDonald [1953] SLT (Sh Ct) 36
PS v MA [2005] FMCAfam 486
Singer v Berghouse (1994) 181 CLR 201

PARTIES: Marie-Therese Ta (P)
Francis Tan Tai Ta (D)

FILE NUMBER(S): SC 3855/05

COUNSEL: J Needham SC (P)
A Sullivan (D)

SOLICITORS: Geoff Osborne & Associates (P)
Edrison Lawyers (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Monday 2 July 2007

3855/05 – TA v TA

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 by the widow of the late Jean-Marie Thai Buu Ta who died on 27 January 2004, aged 87.

2 The testator made his last will and testament on 9 June 2000 appointing his son, Francis, to be his executor and in due course probate of the will was granted to Francis.

3 The grant of probate was in solemn form because the plaintiff alleged initially that there was an informal will in her favour dated 11 November 2003. That claim was in due course, as I understand it, withdrawn and the plaintiff ordered to pay the costs of that application which I am told are in the vicinity of $37,000 and are still unpaid.

4 By cl 3 of the will that was admitted to probate the testator made the following gifts out of his estate:

“(a) My small Vietnamese lacquer painting I give to my son Francis Tan Tai TA; My Yamaha upright piano I give to Julie Thai Boi Hoan TA; My motor car 1979 Volvo registration number KEH 764 I give to John Thai Khai TA.

(b) I DIRECT that my trustee surrender the custody of my large Vietnamese lacquer painting to my son Guy Tri An TA to be displayed at his home as a family heirloom.

(c) I DIRECT that my real estate at 21 Truscott Place, East Killara 2071, be converted into money and distributed among the following beneficiaries according to…

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 Ta v Ta

Details

AGLC: Ta v Ta [2007] NSWSC 773
Case: [2007] NSWSC 773
Decision Date: 2 July 2007

CaseChat Overview and Summary

In this case, the widow of the deceased, Ta, filed an application for family provision against the estate. The deceased had left behind an estate valued at approximately $813,000, which included two paintings presented to the deceased and his wife during their marriage. The deceased's will left the paintings to his children and allocated the widow three-tenths of the estate. The widow argued that the provision made for her was inadequate, especially considering her need for future housing.

The court needed to determine whether the paintings were part of the deceased's estate and if the provision made for the widow was adequate. The court considered whether the paintings were a gift to the deceased and his wife jointly or solely to the deceased. It was established that the paintings belonged to the widow by survivorship and were not part of the deceased's estate. The court then turned to the question of whether the provision made for the widow was adequate, considering her needs and the overall value of the estate.

The court found that the widow was the only person in need within the family and that the provision made for her was inadequate to meet her future housing needs. Given the estate's value and the widow's needs, the court deemed an additional legacy of $700,000 to the widow as appropriate. The court ordered that the legacy be paid to the widow, in addition to the three-tenths of the estate she was already entitled to under the will.

Orders