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Ye v Fung

Ye v Fung

Case [2006] NSWSC 243 7 April 2006

De Facto Relationship

Probate

Intestacy

De Facto Spouse

Property (Relationships) Act 1984

Succession Law

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CITATION: Ye v Fung; Ye v Fung [2006] NSWSC 243

HEARING DATE(S): 06/03/06, 07/03/06

JUDGMENT DATE :
7 April 2006

JUDGMENT OF: Gzell J

DECISION: Plaintiff not a de facto spouse of deceased. Relief denied.

CATCHWORDS: SUCCESSION - Wills, Probate and Administration - Probate and letters of administration - Application to revoke probate, declare intestacy and appoint plaintiff administrator - Whether plaintiff a de facto spouse of deceased under Wills, Probate and Administration Act 1898, s 61B(3A)(a) and s 32G(1) - Whether in a de facto relationship within Property (Relationships) Act 1984, s 4 - Student living with woman 37 years his senior in a non-sexual relationship - Whether de facto relationships confined to non-married adults in heterosexual or homosexual romantic relationships.

LEGISLATION CITED: Wills, Probate and Administration Act 1898
Family Provision Act 1982
Property (Relationships) Act 1984
Uniform Civil Procedure Rules 2005
De Facto Relationships Act 1984
Property (Relationships) Legislation Amendment Act 1999
Property (Relationships) Legislation Amendment Bill 1999
New South Wales Parliamentary Debates (Hansard), 13 May 1999, 534
New South Wales Parliamentary Debates (Hansard), 26 May 1999, 228-229

CASES CITED: Weston v Public Trustee (1986) 4 NSWLR 407
Roy v Sturgeon (1986) 11 NSWLR 454
Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677
Barnes v De Jesus [2001] NSWSC 19
Dridi v Fillmore (2001) DFC 95-232
Turnley v Swaab [1999] NSWSC 594
Devonshire v Hyde (2002) DFC 95-247
Hinde v Bush (2002) DFC 95-260
Hibberson v George (1989) 12 Fam LR 725
Lipman v Lipman (1989) 13 Fam LR 1
Thomson v Badger (1989) 13 Fam LR 559
Theodoropoulos v Theodosiou (1995) 38 NSWLR 424
Macquarie Dictionary (4th ed)
Oxford English Dictionary

PARTIES: Michael Ye - Plaintiff
Keith Yuk Kee Fung - Defendant

FILE NUMBER(S): SC 6032/02; 108333/04

COUNSEL: Mr M Broun QC - Plaintiff
Mr L Ellison SC - Defendant

SOLICITORS: Luminous Legal
Benjafield & Associates Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 7 APRIL 2006

6032/02 MICHAEL YE v KEITH YUK KEE FUNG
108333/04 MICHAEL YE v KEITH YUK KEE FUNG

JUDGMENT

The two proceedings

1 Frances Lan Fong Fung died on 21 June 2001. Contested proceedings for probate of a testamentary document under the Wills, Probate and Administration Act 1898, s 18A were settled and probate issued to Keith Yuk Kee Fung, the defendant.

2 Michael Ye, the plaintiff, came to Australia from China to study. The deceased was separated from her husband. She invited Mr Ye to move into her unit where he lived in a non-sexual relationship with her. She was 37 years his senior.

3 Mr Ye was not a party to the probate proceedings. He commenced two actions against Mr Fung as executor of the estate of the deceased. They were ordered to be heard at the same time, evidence in one being evidence in the other.

4 In the first proceedings, Mr Ye sought an order that provision be made for his maintenance and advancement in life out of the estate…

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 Ye v Fung

Details

AGLC: Ye v Fung [2006] NSWSC 243
Case: [2006] NSWSC 243
Decision Date: 7 April 2006

CaseChat Overview and Summary

The case of Ye v Fung involved the plaintiff, Ye, who sought to revoke the probate of the will of the deceased, Fung, and have himself appointed as the administrator of Fung's estate. Ye contended that he was Fung's de facto spouse under the Wills, Probate and Administration Act 1898, and thus entitled to inherit under the Succession Act 2006. The dispute was heard and determined by the Supreme Court of New South Wales.

The primary legal issue before the court was whether Ye was a de facto spouse of Fung as defined in the Wills, Probate and Administration Act 1898, section 61B(3A)(a) and section 32G(1). This required the court to consider whether the relationship between Ye and Fung met the criteria for a de facto relationship as outlined in the Property (Relationships) Act 1984, section 4. Specifically, the court needed to determine whether Fung and Ye were in a de facto relationship, which is defined as a couple who are not married to each other but live together on a genuine domestic basis in a relationship as a couple.

The court found that Fung and Ye were not in a de facto relationship within the meaning of the Property (Relationships) Act 1984, section 4. The relationship between them was not a romantic one, and the court held that de facto relationships are generally confined to non-married adults in heterosexual or homosexual romantic relationships. The court held that because the relationship between Fung and Ye was not of this nature, Ye was not entitled to be recognised as Fung’s de facto spouse for the purposes of the Succession Act 2006. Consequently, Ye’s application to revoke the probate and to be appointed as the administrator of Fung’s estate was dismissed.

The court did not make any orders in relation to the succession of Fung’s estate, as the application was dismissed. The will of Fung was to be probated in accordance with the existing legal framework, with no recognition of Ye as a de facto spouse.

Orders