CITATION: Ye v Fung (No 3) [2006] NSWSC 635
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 06/06/06
JUDGMENT DATE :
26 June 2006JUDGMENT OF: Gzell J DECISION: Legacy of $425,000.00 and forgiveness of debt of $22,000.00. CATCHWORDS: SUCCESSION - Family Provision and Maintenance - Failure of testatrix to make provision - Able bodied adult in close personal relationship with her for 10 years left nothing and debt not forgiven - Relationship like that of aunt and nephew - Lived together non-sexually - He financially dependent upon her and he providing domestic support and personal care - Estate left to siblings - Estate in excess of $1.5 million - No evidence of needs of siblings - Provision made to buy and furnish a house and a buffer against exigencies LEGISLATION CITED: Family Provision Act 1982
Wills, Probate and Administration Act 1898
Uniform Civil Procedure Rules 2005
Property (Relationships) Act 1984CASES CITED: Ye v Fung; Ye v Fung [2006] NSWSC 243
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191
McGrath & Anor v Eves & Anor [2005] NSWSC 1006
Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419
Lloyd-Williams v Mayfield (2005) 63 NSWLR 1
McKenzie v Topp [2004] VSC 90
Taylor v Lewis [2004] NSWSC 375
Golosky v Golosky, NSWCA, unreported, 5 October 1993
In Re Allen; Allen v Manchester [1922] NZLR 218PARTIES: Michael Ye - Plaintiff
Keith Yuk Kee Fung - DefendantFILE NUMBER(S): SC 6032/02 COUNSEL: Mr A Gidaro - Plaintiff
Mr L Ellison SC - DefendantSOLICITORS: Church & Grace
Luminous Lawyers
Benjafield & Associates
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
GZELL J
MONDAY 26 JUNE 2006
6032/02 MICHAEL YE v KEITH YUK KEE FUNG (NO 3)
JUDGMENT
Background
1 Two lots of proceedings were commenced by Michael Ye: the first for an order under the Family Provision Act 1982 for provision for his maintenance and advancement in life out of the estate of the late Lan Fong Fung; the second that the grant of probate to Keith Yuk Kee Fung be revoked, the deceased be declared to have died intestate, and Mr Ye be appointed administrator of her intestate estate.
2 In order to sustain his challenge in the second proceedings, Mr Ye had to satisfy the Wills, Probate and Administration Act 1898, s 61B(3A)(a) that he was the de facto spouse of the deceased within the meaning of s 32G and he was such for a continuous period of not less than two years prior to the death of the deceased.
3 Pursuant to the Uniform Civil Procedure Rules 2005, r 28.2, I ordered that a decision on those questions be made before any decision on any other part of the proceedings. In Ye v Fung; Ye v Fung [2006] NSWSC 243, I concluded that Mr Ye was not the de facto spouse of the deceased.
The evidence
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- Case
- [2006] NSWSC 635
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the testatrix had failed to make reasonable provision for Mr Ye under the Family Provision and Maintenance Act. The legal issue at hand was whether the relationship between the testatrix and Mr Ye was sufficient to establish a claim for reasonable provision. The court had to consider the nature of the relationship, the dependency of Mr Ye on the testatrix, and the testatrix's failure to forgive his debt. The court also had to assess whether the siblings' needs were adequately provided for in the will, and if the testatrix's decision to leave her estate to her siblings was reasonable.
The court found that the relationship between the testatrix and Mr Ye was akin to that of an aunt and nephew, which was sufficient to establish a claim for reasonable provision. The court recognised that Mr Ye was financially dependent on the testatrix and that she relied on him for domestic support and personal care. The court also noted that the testatrix did not forgive Mr Ye's debt, which further supported his claim. The court found that the testatrix had failed to make reasonable provision for Mr Ye, and that the estate left to her siblings was excessive. The court determined that the testatrix's decision to leave her estate to her siblings was unreasonable, given that there was no evidence of their needs and that provision had been made to buy and furnish a house and provide a buffer against exigencies.
The court ordered that Mr Ye be paid the amount of the debt owed to him by the testatrix, and that he be provided with a reasonable provision from the testatrix's estate. The court found that the reasonable provision should be sufficient to enable Mr Ye to purchase a home and provide a buffer against exigencies. The court also ordered that the estate be distributed amongst the testatrix's siblings, but with a reduced share to account for the provision made to Mr Ye. The court's decision recognised the importance of considering the needs of dependents and the reasonable expectations of those in close personal relationships with the deceased.
Orders
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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