28, 29 November 2022, 1 December 2022, 2 February 2023
DecisionDate:
30 June 2023
Before:
McWilliam J
Decision:
(1) The Court declares the property located in [address anonymised] Richardson in the Australian Capital Territory is held on trust as to 50% for the fifth plaintiff and the remaining 50% for the first to fourth plaintiffs in equal shares.
(2) The gift of $360,000 to the second defendant is set aside, and the second defendant is to pay to the Estate of the late Quoc Khai Tong (Estate) the said amount within 28 days of the making of this order.
(3) Family provision is made for the plaintiffs out of the Estate with adjustments to the terms of the Will as follows:
(a) Provision of $40,000 is to be made out of the Estate to the fifth plaintiff.
(b) In lieu of the gift of $70,000 to the second defendant, a gift of $5,000 is to be made.
(c) In lieu of the gift of $70,000 to the third defendant, a gift of $5,000 is to be made.
(d) In lieu of the gift of $30,000 to Khanh Thi Ha, a gift of $5,000 is to be made.
(e) The first to fourth plaintiffs are to retain the benefit of the residual Estate in equal shares.
(4) Pursuant to s 32 of the Administration and Probate Act 1929 (ACT), Duc Khai Tong is removed as executor of the Estate and the ACT Public Trustee is appointed as executor in his place.
(5) Fortitude Investment Group Pty Ltd ACN 631 689 202 is removed from acting as trustee of the Tong Family Trust and the ACT Public Trustee is appointed as trustee in its place.
(6) The third defendant is to do all things and sign all documents necessary to transfer the title to the property in Richardson referred to in Order 1 above free of any encumbrance to the fifth plaintiff as to a 50% share and to the ACT Public Trustee and Guardian as to a 50% share to be held on trust for the first to fourth plaintiffs.
(7) Within 21 days of the making of these orders, the parties are to provide written submissions as to the orders sought and any evidence on the question of costs, including whether any further oral hearing is sought.
(8) The parties have liberty to apply to the Court for the further working out of any orders necessary to give effect to Orders 1 – 6 above.
Catchwords:
SUCCESSION – FAMILY PROVISION – application by widow for family provision – whether testator’s will failed to make adequate provision for the proper maintenance of his widow and four children – where testator was married for over 15 years – where testator received an advance death benefit of over $1 million and distributed majority of benefit and jointly owned financial assets to his…
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
AGLC
Tong v Tong [2023] ACTSC 163
Case
[2023] ACTSC 163
Decision Date
CaseChat Overview and Summary
- **Parties, Nature of the Dispute, and Court:**
The case Tong v Tong involves a dispute among the family members of the late Quoc Khai Tong, with the plaintiffs being his surviving wife, Suqin Zhu Tong, and their four children. The defendants include Duc Khai Tong, in his capacity as the executor of Quoc's estate and as a personal defendant, and Le Ngoc Tong. The dispute revolves around issues of undue influence, family provision, and estate administration. The matter was heard by McWilliam J in the Supreme Court of the Australian Capital Territory.
- **Legal Issues:**
The court was required to decide on several key legal issues: (1) whether the testamentary gifts of $70,000 each to Duc and Le in Quoc's will were the result of undue influence or coercion; (2) whether the transfers of money or property to Duc and Le were the product of undue influence or unconscionable conduct; (3) whether the plaintiffs' claim for family provision should succeed and, if so, what adjustments should be made; and (4) whether Duc should be removed as executor of the estate and whether Fortitude should be removed as trustee of the Tong Family Trust.
- **Court's Reasoning and Outcome:**
The court found that Quoc's will was not overborne by undue influence when executed, but adjustments were made to the testamentary gifts due to the family provision claim. The transfers of money and property to Duc and Le were not found to be the result of undue influence or unconscionable conduct. The court granted family provision for the plaintiffs, adjusting the terms of the will to reduce the testamentary gifts to Duc, Le, and Khanh Thi Ha to $5,000 each, and ordered additional provision for Suqin Zhu Tong. Duc was removed as executor of the estate, and Fortitude Investment Group Pty Ltd was removed as trustee of the Tong Family Trust. The court appointed the ACT Public Trustee as executor and trustee, respectively, and ordered the transfer of the Richardson property to Suqin and the Public Trustee on behalf of the children. The court also ordered Duc to repay the $360,000 gift to the estate and that the children retain the benefit of the residual estate in equal shares.