Ye v Fung (No 3) - [2006] NSWSC 635

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 2006

JUDGMENT 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 1984

CASES 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 218

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

FILE NUMBER(S): SC 6032/02

COUNSEL: Mr A Gidaro - Plaintiff
Mr L Ellison SC - Defendant

SOLICITORS: 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

4…

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

Case: [2006] NSWSC 635
Decision Date: 26 June 2006

CaseChat Overview and Summary

The case of Ye v Fung (No 3) involved a dispute regarding the distribution of the estate of a deceased person. The deceased, identified as the testatrix, had a close personal relationship with the applicant, Mr Ye, over a period of ten years. Despite this, the testatrix did not make any provision for Mr Ye in her will, leaving him with no inheritance and owing him a debt. The relationship between the testatrix and Mr Ye was akin to that of an aunt and nephew, and they lived together in a non-sexual arrangement. Mr Ye was financially dependent on the testatrix, who relied on him for domestic support and personal care. The testatrix's estate, which was valued at over $1.5 million, was left to her siblings. The applicant argued that the testatrix failed to make reasonable provision for him under the Family Provision and Maintenance Act.

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