Yee v Yee

Case [2017] NSWCA 305

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Yee v Yee [2017] NSWCA 305
Hearing dates:6 December 2016, final submissions: 27 January 2017
Decision date: 28 November 2017
Before: McColl JA at [1],
Gleeson JA at [193],
Simpson JA at [210]
Decision:

Appeal dismissed with costs

Catchwords: SUCCESSION – family provision and maintenance – eligible person – application for provision by nephew – whether factors warranting application – whether nephew established he should be regarded as natural object of testamentary recognition by uncle – community standards – Succession Act 2006 (NSW), s 57(1)(e), s 59(1)(b)
SUCCESSION – family provision and maintenance – notional estate order – parties – joinder – Succession Act 2006 (NSW), s 92 – Uniform Civil Procedure Rules 2005 (NSW), r 6.24(1)
SUCCESSION – family provision and maintenance – family provision order
Legislation Cited: Family Protection Act 1908 (NZ)
Family Provision Act 1982 (NSW)
Family Provision Act 1982 (NSW)
Inheritance (Family Provision) Act 1938 (UK)
Succession Act 2006 (NSW)
Supreme Court Act 1970 (NSW)
Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Barns v Barns (2003) 214 CLR 169; [2003] HCA 9
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Brown v Faggoter [1998] NSWCA 44
Brown v Tasmania [2017] HCA 43
Burke v Burke [2015] NSWCA 195; (2015) 13 ASTLR 313
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Churton v Christian (1988) 13 NSWLR 241; [1998] NSWCA 23
Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639
Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89
Ebert v Ebert; Ebert v Ebert [2008] NSWSC 1206
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Foley v Ellis [2008] NSWCA 288
Golosky v Golosky (Court of Appeal (NSW), 5 October 1993, unrep)
House v R (1936) 55 CLR 499; [1936] HCA 40
In re Sinnott [1948] VLR 279
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422
Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189
Mulcahy v Weldon [2002] NSWCA 206
Page v Page [2017] NSWCA 141
Palmer v Dolman [2005] NSWCA 361
Penfold v Perpetual Trustee [2002] NSWSC 648
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Porthouse v Bridge [2007] NSWSC 686
Re Fulop Deceased (1987) 8 NSWLR 679
Sassoon v Rose [2013] NSWCA 220
Schaefer v Schuhmann [1972] AC 572
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Smith v Dayman [1994] NSWCA 286
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012]…

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AGLC
Yee v Yee [2017] NSWCA 305
Case
[2017] NSWCA 305
Decision Date

CaseChat Overview and Summary

The proceeding concerned an application for family provision made by a nephew against the estate of his deceased uncle. The nephew sought to be recognised as an eligible person under the *Succession Act 2006* (NSW) and to receive provision from the estate. The court was required to determine whether the nephew had established that he should be regarded as a natural object of testamentary recognition by his uncle, considering community standards. Additionally, the court considered issues relating to the joinder of parties in relation to a notional estate order under the *Succession Act 2006* (NSW) and the *Uniform Civil Procedure Rules 2005* (NSW).

The primary legal issue was whether the nephew, despite not being a child or spouse, met the criteria under section 57(1)(e) of the *Succession Act 2006* (NSW) to be considered an eligible person. This involved assessing whether the deceased had made adequate provision for the nephew's proper maintenance, education, and advancement in life, and whether the nephew had demonstrated a sufficient connection to the deceased to warrant such provision according to contemporary community standards. The court also had to consider the procedural aspects of making a notional estate order and the necessary parties to such proceedings.

The court analysed the nature of the relationship between the nephew and the deceased, including the extent of financial and non-financial support provided by the deceased to the nephew during his lifetime, and the nephew's expectations of testamentary benefit. The court applied the principles established in case law regarding the assessment of "adequate provision" and the factors to be considered when determining if a person is a "natural object of testamentary recognition." The court found that the nephew had not established that he was a natural object of the deceased's testamentary recognition, nor that adequate provision had not been made for his proper maintenance, education, and advancement in life. The court also addressed the joinder of parties in relation to the notional estate, finding that the necessary parties had been joined.

The appeal was dismissed, and the orders of the primary judge were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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