Family Provision & Emigration

Norman Yee emigrated from Hong Kong to Australia in 1941; from the 1950s to the 1980s Norman and his wife Doreen assisted other family members to emigrate from Hong Kong and Southern China to Australia. Norman died in May 2013 at the age of 89 having made his last Will in June 2012. Norman appointed his son Robert, and his brother Phillip, as his executors.

Norman made seven wills in his life, however, although he made provision for his two adopted children, his second wife and her daughter Norman made no provision for any of the extended family members he had helped to emigrate to Australia.

Norman assisted his nephew William to emigrate to Australia; William lived with Norman from the age of nine for ten years. Norman’s last will dated June 2012 made no provision for William. William made a family provision claim from Norman’s estate.

The estate concedes that William is an “eligible person”  under the Succession Act and is able to make a claim for provision. But argues there are no “factors warranting” the making of any order for provision in William’s favour, and submits that no order should be made; and in the alternative, if one were to be made, that it should only be modest.

William argued that the relationship he had with Norman was more like father and son; providing him with financial assistance, accommodation and employment well into my adult life. William argued that he and Norman shared a close bond and when his uncle was diagnosed with leukemia he visited him and kept in touch with him by phone.

Robert disagreed that William and Norman were like father and son. William called him “uncle”, not “dad”. He contended that the bond between Norman and William was in not as close as the bond Norman had with his children and Robert and his sister never regarded William as our sibling.

Robert argued that Norman was very generous and that he took responsibility for the many relatives he assisted to emigrate to Australia.  William was merely one recipient of Williams’s generosity.

Robert submitted that Norman believed William  “had a bad habit of losing the money he cannot afford to lose”, “spends too much money on fancy clothes”, “gambles too much and never goes to work” and is a “good for nothing”. Further, William did not share a close relationship with Norman during the last years and months of Norman’s life; when he was diagnosed with leukemia William was not told, an analysis of my William”s phone records would show that he never rang Norman

William conceded he had debts and had been impecunious but “a just father’s moral duty is to assist the lame ducks amongst his offspring”. therefore the court should allocate a share of my uncle’s estate to me.

Robert submitted that Norman made seven wills during his life and did not provide for William in any of them; therefore the court should reject my cousin’s family provision application.

The court found that while William had lived with his uncle Norman for a significant period and had been supported by him, both while growing up and into his adult life, it was not because Norman considered William to be like a son.

While it was conceded that William lived with his uncle for longer than most of the other relatives from China, this did not negate the fact that he was living with him as a member of his extended family, not as his son.

The court rejected William’s assertion that he had had a father-son relationship with Norman, although William was financially dependent on Norman to a large extent when he was younger, this could not be said with respect to his adult life.

The court found that while William had demonstrated need, that need was largely self-inflicted. Given the circumstances of William and Norman’s relationship, there were no grounds for the estate to carry the burden of William’s poor financial decisions.

 

 

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