Tam v Chen - [2023] VSC 12

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S ECI 2019 05415

BETWEEN:

KA YAN TAM (BY HER LITIGATION GUARDIAN, ANDREW JOHN SIMPSON)	Plaintiff
v
YU CHEN (AS EXECUTOR AND TRUSTEE OF THE WILL AND ESTATE OF LAI HUNG YAM (IN THE WILL CALLED YAM DE SOUZA ESQUIVEL LAI HUNG ALSO KNOWN AS LAI HUNG YAM DE SOUZA ESQUIVEL AND YAM DE SOUZA ESQUIVEL, DECEASED)) & ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2022
DATE OF JUDGMENT:	27 January 2023
CASE MAY BE CITED AS:	Tam v Chen
MEDIUM NEUTRAL CITATION:	[2023] VSC 12

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ADMINISTRATION AND PROBATE – Application for extension of time to bring an application – Administration and Probate Act 1958 (Vic) s 99 – Maher v Maher [2019] VSCA 161 referred to – Where plaintiff lives with an intellectual disability and mental illness and the proceeding is brought by a litigation guardian – No prejudice – Extension of time granted.

TESTATOR’S FAMILY MAINTENANCE – Application by only child of the deceased for further provision under Part IV of the Administration and Probate Act 1958 (Vic) – Estate held on trust for the benefit of the plaintiff for her lifetime and gifted to the defendants as remaindermen – What amount would constitute adequate provision for the proper maintenance and support of the plaintiff – Adequacy of provision to provide for the plaintiff’s proper maintenance and support – Where the plaintiff lives with a mild intellectual disability and mental illness and relies on government funding and social housing – Adequate and proper is relative to size of estate – Principle of freedom of testation and intentions of the deceased – Where the plaintiff’s needs are currently being adequately met – Relevance of NDIS support – Schmidt v Walter [2019] VSC 385 referred to – Portable life interest order granted to the plaintiff to provide greater flexibility over time.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J McCoy	Maurice Blackburn Pty Ltd
The Defendants in person

HER HONOUR:

Introduction and background

These reasons concern an application by the plaintiff, Ms Ka Yan Tam (also known as, and referred to in these reasons as ‘Gina’) for orders for further provision from the estate of her later mother, Lai Hung Yam (‘deceased’). As the application was made some 13 months after the expiry of the limitation period prescribed by s 99(1) of the Administration and Probate Act 1958 (Vic) (‘Act’), Gina, who is represented in this proceeding by a litigation guardian, Mr Andrew Simpson, requires an extension of time to bring the application.

Gina has a litigation guardian because she has a mild intellectual disability, and suffers from disabling mental illness, including paranoid schizophrenia, which was diagnosed when she was a teenager. She is 34 years old, is unlikely to ever be able to work, and, according to the litigation guardian, ‘is not a person who is capable of…

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 Tam v Chen

Details

AGLC: Tam v Chen [2023] VSC 12
Case: [2023] VSC 12
Decision Date: 27 January 2023

CaseChat Overview and Summary

In the matter of Tam v Chen, the court was presented with two primary issues. The first involved an application for an extension of time to bring a claim under the Administration and Probate Act 1958 (Vic), given the plaintiff's intellectual disability and mental illness, with proceedings brought by a litigation guardian. The second issue concerned an application by the deceased's only child for additional provision under the Act, seeking to determine what would constitute adequate provision for the plaintiff's proper maintenance and support, given her disability and reliance on government funding and social housing.

The court considered the principles of freedom of testation and the deceased's intentions, balanced against the plaintiff's current needs being met. The court acknowledged that the adequacy of provision is relative to the size of the estate. It also referenced the case of Schmidt v Walter, which highlighted the importance of considering the individual's circumstances and the relevance of NDIS support. The court determined that there was no prejudice to the defendants in granting the extension of time and found that the plaintiff's needs were being adequately met at present.

Consequently, the court granted the plaintiff a portable life interest order, providing her with greater flexibility over time. This decision recognises the unique circumstances of the plaintiff and aims to ensure that her needs are appropriately met within the constraints of the estate. The court's ruling reflects a careful balance between the testator's intentions and the evolving needs of the beneficiary, with the ultimate goal of providing for the plaintiff's proper maintenance and support.

Orders