Lee v Lee; The Estate of Raymond William Lee [2021] NSWSC 808

Supreme Court New South Wales

Medium Neutral Citation: Lee v Lee; The Estate of Raymond William Lee [2021] NSWSC 808 Hearing dates: 2, 3 and 4 March 2021; Final written submissions received 25 May 2021 Date of orders: 2 July 2021 Decision date: 02 July 2021 Jurisdiction: Equity Before: Kunc J Decision: Provision ordered; Possession ordered; Will rectified Catchwords: SUCCESSION — Family provision — Claim by adult child — Quantum of provision to be made Legislation Cited: Civil Procedure Act 2005 (NSW) Succession Act 2006 (NSW) Cases Cited: Barbuto v Barbuto [2019] NSWSC 1023 Bowers v Bowers [2020] NSWSC 109 Camernik v Reholc [2012] NSWSC 1537 Estate of Aspasia Kandros [2019] NSWSC 757 Sammut v Kleeman [2012] NSWSC 1030 Smith v Johnson [2015] NSWCA 297 Taylor v Farrugia [2009] NSWSC 801 Category: Principal judgment Parties: Kathryn Lee (Plaintiff) Margaret Lee (Defendant) Representation: Counsel:

K Lee (Plaintiff in person) T Catanzariti (Defendant)

Solicitors:

Pollack Greening & Hampshire (Defendant) File Number(s): 2019/310419 (Probate); 2019/323578 (Family Provision); 2020/160944 (Possession) Publication restriction: Nil

Judgment 1. This judgment resolves three proceedings which relate to the estate of the late Raymond William Lee (the Estate). Mr Lee (the Deceased) died on 24 November 2018. He was survived by his wife of over 50 years, Margaret Lee, and their three children. For convenience and without disrespect, I will refer to members of the Lee family by their first names. 2. The Deceased made a will dated 30 April 2008 (the Will). The Will left the Estate to Margaret but omitted to name an executor. The Deceased's eldest daughter, Kathryn Lee, has brought proceedings against her mother claiming family provision from the Estate under the Succession Act 2006 (NSW) (the Act). Margaret has brought proceedings in probate seeking rectification of the Will to appoint her as executor and a cross-claim for possession of the property at XX Islay St, Maclean, NSW (the Islay St Property). 3. Kathryn's solicitor filed a notice of intention to cease to act on 10 September 2020. From that time, Kathryn has not had legal representation and she appeared in person at the hearing before me. Margaret was represented by Ms T Catanzariti of Counsel. The proceedings were heard in Ballina because Kathryn said her health did not permit her to travel to Sydney. 4. On 21 September 2020, Lindsay J ordered that the proceedings be heard together and that evidence in one be evidence in the others. By those orders, Lindsay J also granted Margaret special letters of administration to allow her to act as the Estate's executor for the purposes of the proceedings. 5. The primary issue for the Court to resolve in these proceedings was the provision which should be ordered for Kathryn under the Act (Margaret having accepted that the Will made inadequate provision for Kathryn, in that it made no provision for her). It was also necessary for the Court to determine the terms on which a writ of possession for the Islay St Property should be granted to Margaret, and whether the Will should be rectified to appoint Margaret as executor of the Estate. 6. The Court's conclusions on these issues can be summarised as: 1. Provision for Kathryn will be ordered in the sum of $510,000 from the actual Estate. There is no need for the Court to make any notional estate order, including over the Deceased's share in the Islay St Property. 2. Margaret will be granted an order for possession of the Islay St Property, stayed until the day which is six months from the date of payment of the provision in the preceding sub-paragraph, to allow Kathryn to arrange alternative accommodation. 3. The Court is satisfied that the Deceased intended to appoint Margaret executor of the Estate, and that the omission was a clerical error. Accordingly, the Will will be rectified to appoint Margaret at executor.