Supreme Court New South Wales Medium Neutral Citation: Yee v Yee & Anor [2016] NSWSC 360 Hearing dates: 2, 3, 4, 5, 27 February, 4 March and 14 April 2015 Date of orders: 01 April 2016 Decision date: 01 April 2016 Jurisdiction: Equity Before: Slattery J Decision: Summons dismissed with costs. Catchwords: SUCCESSION – family provision – the plaintiff, a nephew of the deceased, lived in deceased's household for at least 10 years between the ages of nine and 19 – no dispute that the plaintiff is an eligible person under Succession Act, s 57(1)(e) - no provision made for the plaintiff in the deceased's will – whether there are "factors warranting" the making of an order for provision under Succession Act, s 59(1)(b) – whether adequate provision made for the plaintiff - whether any, and if so, what provision should be made for the plaintiff out of the estate of the deceased Legislation Cited: Succession Act, ss 57, 58, 59 Cases Cited: Brown v Faggoter [1998] NSWCA 44 Churton v Christian (1988) 13 NSWLR 241 Diver v Neal [2009] NSWCA 115 Diver v Neal [2009] NSWCA 54 Drury v Smith [2012] NSWSC 1067 Evans v Levy [2011] NSWCA 125 Jones v Dunkel (1959) 101 CLR 298 Meers v Permanent Trustee Co Ltd [2000] NSWSC 1108 Morgan v Public Trustee of New South Wales [1999] NSWSC 1112 Penfold v Perpetual Trustee Company Ltd [2002] NSWSC 648 Porthouse v Bridge [2007] NSWSC 686 Re Fulop (1987) 8 NSWLR 679 Re Hatte [1943] St R Qd 1 Singer v Berghouse (1994) 181 CLR 201 Category: Principal judgment Parties: Plaintiff: William Yee First Defendant: Robert Yee Second Defendant: Phillip Yee Representation: Counsel: Plaintiff: M Thompson First Defendant & Second Defendant: A. Crossland Solicitors: Plaintiff: Vrege Kolokossian, Gerard Malouf & Partners First Defendant & Second Defendant: Kelvin Reginald Low, LowDoherty & Stratford File Number(s): 2013/359058 Publication restriction: No Judgment 1. Norman Yee died in May 2013 at the age of 89. He emigrated from Hong Kong to Australia in 1941. He and his wife Doreen generously assisted other family members to emigrate from Hong Kong and Southern China to Australia from the 1950's to the 1980's. The plaintiff, William Yee, the deceased's nephew, was among those that Norman assisted. The plaintiff lived with Norman for ten years from the early 1960s to the early 1970s. The parties disagree whether he lived with Norman for much longer than this. When Norman died in March 2013, his last will dated June 2012 made no provision for William. William now makes a claim for family provision under Succession Act, Chapter 3. 2. Norman appointed his son Robert, the first defendant as his brother Phillip, the second defendant, as his executor. The estate concedes William is an "eligible person" under Succession Act, s 57(1)(e) and is able to make a claim for provision. But it contests William's claim, contending there are no Succession Act, s 59(1)(b) "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. 3. Throughout these proceedings the parties referred to one another by their first names. Many of the witnesses had the same surname, Yee. Without intending any disrespect to any party or witness the Court will adopt the same practice and refer to the parties and some witnesses by their first names. The deceased called the plaintiff by the familiar name "Bill" but he is referred to as either "William" or "the plaintiff" throughout these reasons. 4. The proceedings were conducted over six days between 2 February and 14 April 2015. Mr M. Thompson of counsel, instructed by Gerard Malouf & Partners, appeared for the plaintiff. Mr A. Crossland of counsel, instructed by LowDoherty & Stratford, appeared for the estate. Yee Family History – 1941 to 2013 1. The Court's narrative of events that follows represents the Court's findings unless the context otherwise indicates. William's Early Years Before Leaving School – 1951 to 1967 1. Norman Yee was born in China on 8 August 1924. He migrated to Australia in 1941. Norman returned to China to marry his first wife Doreen. After their marriage in September 1949 in China the couple settled in Australia. 2. The plaintiff, William, is the deceased's nephew. He is a son of the eldest brother of the deceased who lived in Hong Kong. William was born in Hong Kong in January 1951. 3. Norman and Doreen could not have children. So they adopted two children, the defendant, Robert Yee and his sister, Elaine Yuen. Elaine and Robert were growing up in Norman and Doreen's household when in 1961 the plaintiff, William, and his sister Yvonne Poon, were sent by their parents to live in Australia with their uncle Norman. At that time William was 9 years old. The arrangement with Yvonne and William's parents was that that William and Yvonne would have the opportunity to be raised in Australia with Norman and Doreen. 4. William and Yvonne were brought up in Norman and Doreen's household. They shared family life and all family occasions with Norman's adopted children Elaine and Robert. 5. Norman was very generous to William. Norman covered all William's expenses when he was in the household, allowing William to save and eventually to purchase his first car before he had his driver's licence. Norman taught William to drive, just as he taught Elaine and Robert. 6. Norman was industrious, entrepreneurial and successful. He wanted his children, and the children for whom he was caring, to be industrious and successful in business. In 1965 when William was about 14 and still at school Norman arranged work for him in a fish and chip shop that Norman then ran. Norman began to teach William how to cook and about how to manage retail food outlets and restaurants. 7. In February 1966, when William was 15, and after four to five years in Australia, Yvonne returned to Hong Kong to live again with their parents. Robert's explanation for her return to Hong Kong is that she was becoming a difficult adolescent and it was thought that she could be better managed by her biological parents in Hong Kong. The Court does not need to decide the precise reasons for her return. Yvonne features only slightly in the story of William's life in Australia after 1966. But she gave some evidence in the proceedings and was cross-examined. 8. When William was a youngster he and Yvonne received Norman and Doreen's love and attention as members of a close and affectionate household. But there was a strong contest in the proceedings as to whether William and Yvonne's relationship with Norman and Doreen, when they were living together in the house and afterwards, was the same as or different from the relationship that Elaine and Robert had with Norman and Doreen. It is important to identify the precise time that the alleged contrast in these relationships is being examined. Later in these reasons a more detailed analysis is undertaken of some clear differences in the way that Norman treated William as an adult, contrasted with the way that he treated Robert and Elaine as adults. But Robert sought in his evidence to identify differences between the way that he and Elaine were treated and the way that William and Yvonne were treated, even when they were living together in Norman and Doreen's household as teenagers growing up. 9. Robert is right to a degree. There were indeed minor differences evident between the way that Norman treated Robert and Elaine and the way that he treated William, even when they were all living in the household together. But it is also clear that Norman and Doreen tried to minimise these differences as much as they possibly could, so that William and Yvonne would feel fully accepted as an equal part of the household. After Yvonne left and returned to Hong Kong it is probable that Norman and Doreen tried to stabilise William's environment in Australia as much as possible. I accept William's evidence, for example, that he was included as an equal in everything happening within the family. He says, and I accept, that Sunday was family day: they all went together on picnics, family outings and visited relatives. On weekends, as William says, Norman also took all the children together to parks, beaches, the Blue Mountains, art galleries, drive-in movies and museums. 10. But despite Norman and Doreen's highly inclusive approach to William in the household, even then some important differences existed. I accept Robert's evidence that William never addressed Norman as "Father" or by any similar term indicating or implying a paternal-filial relationship but rather as "uncle Norman", or by the Chinese term "Gong Gong", which means uncle. Moreover Robert says, and I accept, that he did not understand his relationship with William to be that of a sibling. He always saw William as his cousin. I accept Robert's evidence that these basic relationship distinctions were never lost within the household. 11. Apart from the Court's preference for Robert's evidence over William's on this subject, the probabilities favour this conclusion. Norman and Doreen never suggested adopting either William or Yvonne to give them legally equivalent status to their other children. And subsequent to Yvonne's departure after only four of five years with Norman and Doreen, it must have occurred to Norman and Doreen that William might also take the option of returning to his family in Hong Kong. For Norman to have acquiesced in or encouraged William to address him as if he had a paternal relationship with William in substitution for that of William's own biological father would have disrespectfully usurped the role of Norman's older brother in Hong Kong. There is no suggestion in the evidence of bad blood or enmity between Norman and William's father, or that William's father wanted to disown him, other than such bare inferences as might arise from William's long absence from Hong Kong in Australia. It is also difficult to accept that Norman was prepared to give a status to William when living within the household that the evidence strongly suggests that Norman did not wish to confer on William later. I accept Robert's evidence that within Norman and Doreen's household William's biological parents in Hong Kong continued to be referred to as William's father and mother. If they were not so described no one has given any sensible account of how else they were referred to in Norman and Doreen's household. William Leaves School and Starts Work – 1967 to 1980 1. William left school in 1967 at the age of 16. He had been to the local High School. In contrast Norman had paid for Robert to attend the Kings School at Parramatta. 2. William then started working full-time in one of the Chinese restaurants Norman owned and operated, the Mandarin Restaurant, Parramatta. Norman paid William for his work in the Mandarin Restaurant. I accept Robert's evidence that the payment of wages to William for this work differed at times from Robert's situation when he was working in Norman's restaurants: Robert says, and I accept, that the work he did for his father, Norman in these restaurants was sometimes unpaid. 3. In 1969 at the age of 19, William moved away from Norman and Doreen's household. But he did not lose his existing connection with Norman's family businesses. William moved to Singleton to assist his uncle, Victor Yee, with the opening of a restaurant in that district. Norman encouraged this move. William says, and I accept, that William asked Norman whether Norman thought it "would be a good idea" for William to assist Victor in this restaurant venture in Singleton. 4. Norman responded positively. William says, and I accept, that Norman advised him "It would be a very good idea. It would be a good opportunity for you to learn how to open a restaurant and I think it would help further your managing skills". Norman was careful with his advice. William took Norman's advice and moved to Singleton for about two years. 5. Norman continued to operate restaurants. In 1972, when William was about 21, Norman asked him to return to Sydney to work at another restaurant of Norman's in Parramatta, the Sun Wah. William took advantage of the opportunity, left Singleton, returned to Parramatta and commenced work at the Sun Wah. Norman did not give William a 21st birthday as he did with Robert. Nor did he give William a trip to Europe and a new European car as a 21st birthday gift as he did for Robert and Elaine. 6. William's account of this conversation is that Norman called him and explained, "I have just gone into a new partnership and opened the Sun Wah Restaurant [in Parramatta]. I want you to come back and work in Sun Wah". 7. William responded "Ok Uncle. I think I should be able to return soon". And he did. I accept that soon after this conversation William returned to live for a very brief period with Norman and Doreen at their home in Melville Street, Parramatta and commenced work first at a restaurant in Auburn and then at the Le Wah Restaurant in Riverstone ("the Riverstone Restaurant"). But how long William lived with Norman and Doreen this time is disputed. 8. In June 1976, when William was aged 25, he formed a close personal relationship with Susan Won, the daughter of Norman's business partner at the Riverstone Restaurant. Soon afterwards Susan Won became pregnant and they had a child, a daughter Nicole. Susan and William rented an apartment together. But after six months together Susan moved back home with her parents and arrangements were made to have Nicole cared for by one of Susan's aunts. 9. According to William, he and Susan having a child out of wedlock incurred severe family disapproval. Robert disputes this. He says that the birth of their daughter was not a social embarrassment within the family and that Norman and Doreen did not frown upon the situation created by Nicole's birth. On this issue it can be inferred from the general evidence before the Court about Norman and Doreen, that they conducted a fairly conservative 1970s family and they probably did express some surprise and disappointment at this turn of events. But I doubt that they conveyed the severe disapproval that William attributes to them. Through the witnesses that spoke about him, Norman comes across as hard-nosed in business but kindly and sociable in his personal life. I prefer the evidence of Robert on the subject of Norman and Doreen's reaction to Nicole's birth. It is more likely, in my view, that Norman was concerned William was not taking full responsibility for his baby daughter and living in a semi-dependent relationship with Susan in a small flat at her parents' home, whilst Nicole was being raised elsewhere. I accept that Norman did say to Robert from time to time about Nicole being away from William's fatherly care, "It's no good that Bill doesn't look after the girl" and again at other times "she should have a father to look after her". I also accept Robert's related evidence that Norman had little contact with Nicole throughout his life. 10. In 1976 Norman and Doreen made significant contributions to Robert and Elaine's future financial security. They were then only teenagers. They purchased a house in Hope Street, Rouse Hill in Robert's name. They also purchased a house at Westmead in Elaine's name. When these houses were eventually sold I accept both Robert and Elaine were allowed to keep the sale proceeds. It is not in contest that Norman and Doreen never purchased a house for William at any age. He was given some financial assistance to start a business but he was neither given, nor promised such a large domestic purchase. The closest Norman came to providing something similar for William was an alleged invitation to him to live rent-free in the Auburn property. Robert disputes that Norman gave William rent-free accommodation there. This issue is dealt with below. 11. In 1977, when William was aged 26, Norman offered him a one quarter partnership share in the Riverstone Restaurant. William accepted this offer. To be closer to the Riverstone restaurant, William commenced residing with his brother Daniel, also known as "Danny" at McGrath's Hill. But William says, and I accept, that on some weekends he would stay at Norman and Doreen's house. 12. Back in Norman and Doreen's household, after William had left, Norman paid for family holidays to Europe and Mexico for him and Doreen, Robert and Elaine. Changes in the Yee Family, their Property and in William's Career – 1981 to 1994 1. Despite the obstacles William tried in this period to maintain some kind of family relationship with Nicole's mother, Susan. In 1981 he moved in with Susan and her family at North Parramatta. But their daughter, Nicole, remained living with Susan's aunt. Nicole would visit Susan and William on weekends. 2. In 1981, when William had just turned 30, Norman and Doreen built a family home in the Sydney suburb of Box Hill. By this time Norman had slightly diversified his business enterprises away from restaurants and was operating a plastics factory, "Plakpast". 3. In 1981 Norman opened another restaurant called "Yee's Palace". To reward William, and free up his own time, Norman gave his Parramatta restaurant, the Mandarin Restaurant, to William, who commenced operating it. This gift meant that William took over the ownership and goodwill of the restaurant but had to meet its outgoings out of restaurant revenue. It was not fully a gift though. William had to swap his one quarter share in the Riverstone Restaurant for it. 4. William did not make a success in his venture with the Mandarin Restaurant. This is perhaps not surprising. Apart from any lack of business acumen on William's part the Mandarin Restaurant was "not very busy" to use William's own words, and was not a trouble-free gift. 5. In 1990, when William was 39, Norman sold the Plakpast business. Upon this sale Norman gifted to Robert one quarter of the sale proceeds of Plakpast, a sum of approximately $140,000. 6. In the same year, 1990, Norman made his first will. He made seven wills throughout his life. They all expressed generally consistent testamentary preferences. He recognised his wife Doreen, and then his second wife Helen and his adopted children Elaine and Robert, and Helen's daughter Tina in most of these various wills. William did not feature in any of them. 7. In Norman's first will in 1990 he left the whole of his estate to Doreen. But the will provided that if Doreen predeceased Norman then Norman's estate would be divided equally between Elaine and Robert. 8. In 1990 Doreen was diagnosed with breast cancer. Her struggle with cancer was unsuccessful and she died in November 1991. William claims that he helped support Norman during this difficult period. Robert contests this claim. 9. After Doreen's death Norman decided to transfer the Box Hill family home to Robert. And at the same time Norman moved into Robert's property in Rouse Hill. Norman had purchased this Rouse Hill property for Robert in 1976 at the same time as he had purchased the house for Elaine at Westmead. 10. Norman was very depressed after Doreen's death. I accept that Robert and Elaine took close care of him in this period and that William was not a particularly frequent visitor to Norman at this time. 11. Norman gave a house in Melville Street, Parramatta to Elaine in 1991, having purchased a house for her in Wentworthville when she was 18. 12. Norman made another will in March 1992 after Doreen's death. In this second will Norman divided his assets equally between Elaine and Robert. 13. Norman decided to remarry. He formed a relationship with and later married Helen Yee in 1994. In September of that year Norman made his third will. In this third will he divided his estate equally between his children Robert and Elaine and his second wife, Helen. When Helen came to Australia there was a family party attended by between 16 and 30 people. William was among them but so were many other extended family members. 14. When Helen Yee married Norman she already had a daughter, Tina, by a previous marriage. When Norman married Helen he sponsored Tina's migration to Australia. Tina was then aged 19. Not long after Norman and Helen's marriage he adopted Tina. William and Rosalba at Auburn – 1994 to 2000 1. About the same time that Norman and Helen married, William's relationship with Susan ended. For some reason William felt unable to tell Norman of this development himself. So he asked his sister Yvonne to inform Norman of his breakup with Susan. 2. William says that when Norman found out about the breakup he offered William the opportunity to live rent-free in one of the apartments that Norman owned in a block of units in Station Street, Auburn ("the Auburn property"). Robert disputes this evidence and says that the true arrangement between William and Norman was that William was obliged to pay rent for Unit 1 in the Auburn property but that William failed to honour the arrangement and to pay Norman. William says there was never any arrangement for him to pay rent for Unit 1. 3. But in 1995, when William was 44, he did commence to occupy Unit 1 of the Auburn Property. Soon after, on 18 February 1996, William married his wife, Rosalba Sorgiovanni Yee. After their wedding they lived together in the Auburn property, in Unit 1. 4. William and Rosalba's occupation of the Auburn property is important at two levels in the proceedings. William's case is that Norman's offer of rent-free accommodation was a sign of his continuing close relationship with Norman, closer than that merely of uncle and nephew. Secondly though, William and Rosalba's case is that Norman actually promised in 2003 to leave William the Auburn property. There was a strong contest about both these matters. 5. William stated in this principal affidavit about his moving in to the Auburn property, "Uncle Norman told me that I could live rent-free in one of the units in the block of units he owned at Auburn". But Robert's case is that William asked Norman if he could move into one of the units in the Auburn property and that Norman somewhat reluctantly gave in. In my view, Robert's evidence on this subject is the more credible and probable account of events. Robert admits he was not a party to the conversations with Norman and William about William moving into the unit. But Robert says, and I accept, that Norman said to him about William's approach to him, "This was not something that I want to do. William gambles too much and never goes to work. He got kicked out of his house with Susan… He has nowhere to go". Norman also said to Robert at this time about the arrangements after William moved in, "William would pay half the normal rent for the unit". 6. This is not a matter on which the Court is prepared to place much weight upon the credibility of William. As these reasons elsewhere discuss William was a witness who was able to distort facts to advantage his own case. This, in my view, is what was going on with this transaction as well. First, the Court accepts Robert's evidence that the deceased did speak to Robert as Robert says. But apart from their comparative credibility, there is an improbability in William's account of these conversations with Norman. By this stage William was in his 40s and Norman had already gifted him a fully operating restaurant for him to start his own business empire but William had made little of the opportunity. It seems inherently unlikely that a man with the business discipline of Norman would simply offer a free ride to William in middle age. William was then not without earning capacity. A balance of both benevolence and discipline suggests exactly what Robert says that Norman proposed: William would pay half the normal rent for the unit. 7. But in my view what was a semi-formal understanding between Norman and William was treated differently by each of them. Norman expected that acting honourably William would make his best efforts to pay half the normal rent but would probably have to be indulgent if William missed a few payments. But from William's point of view, although he was asked to pay rent, he knew his uncle was unlikely to take legal action to remove him and so he gave priority to other expenditure in life rather than his rent. 8. By the time William got married and had a child Norman's sense of family responsibility made it even more difficult for him to take enforcement action against William in relation to the rent. I accept Robert's evidence that on a number of occasions Norman complained to him about William not paying the rent and making promises to pay and that "William now has a wife and baby, I can't kick them out and leave them on the street". 9. And I accept Norman's step-daughter Tina's evidence that Norman said to her that "Not only is William not paying the rent, he calls the agent and asks the agent to organise minor repairs that he would be able to fix himself." 10. William strongly contests Robert's evidence about these conversations with the deceased. But in my view, William's attack fails. It is not at all surprising, in my view, that no one else was present when the deceased confided in Robert about William's failure to pay rent. Such a private conversation is consistent with Norman feeling somewhat shamed by the way William was behaving. Read as a whole Elaine's evidence does not support William's account. It is not surprising Norman did not attempt to evict William: it was difficult for Norman, given his position of head of the family in Australia to do that. Robert's failure to collect rent when Norman was overseas is also hardly surprising, because as Robert himself explained "that would have been disrespectful to my father", who was obviously the decision-maker in this situation. If Norman had not seen fit to make such demands of William it would not have been proper for Robert to have done so in Norman's absence. Whilst I do not regard Robert's evidence about the Auburn property's real estate agent and the rent as particularly satisfactory, the best explanation of and defects in that evidence, in my view, is that the events in question were a long time ago and it was taxing the limits of Robert's memory. Moreover Tina corroborates, in part, Robert's evidence on this issue. 11. There are other controversies arising out of the events of this period. One of them centres around Norman's alleged gift of a Volvo motor vehicle to William in 1996. William says that at the time he moved rent-free into the Auburn property Norman also purchased a new car for himself and gave his old Volvo motor vehicle to William. 12. Norman did give a Volvo to William. William's case is that he was one of the only members of the family to receive such treatment from Norman. He says that although it was a second hand Volvo that any car was given to him puts him in the same class as only Robert, Elaine, Elaine's husband Alex and Tina among Norman's relatives. There was a sub-dispute about whether William was ungrateful in dumping the Volvo at a later stage and whether the deceased was unhappy with him about that. But that sub-dispute does not need to be decided. 13. But Robert's case on the Volvo is that it was an insignificant gift. His case is persuasive. I accept Yvonne's evidence that the car was "very old" and probably, as Robert says, about 20 years old at the time. The cars that Norman gave to Robert, Elaine and Tina were much newer than this. In my view, Tina's evidence reflects the probable reason for the gift of the Volvo: William was financially desperate at the time. She says, and I accept, that Norman said to her at the time, "I gave William the old Volvo because he lost all of his money gambling… He didn't even have a car". The gift of the Volvo in my view is to be characterised as a moment which the patriarch of an extended family takes pity on a junior family member who was in very difficult financial straits at the time. And a 20-year-old Volvo was not a great burden on the deceased's generosity. 14. When William married Rosalba, Norman was involved in the wedding. Norman's name was listed on the wedding invitations in the place of the father of the groom and Norman actually undertook that role at the wedding. But Norman did not pay for the wedding. In contrast he had paid for Robert's wedding (with 450 guests) and Elaine's wedding (with 250 guests) and her bridal shower. Interestingly, William did not rail against Norman being less generous about such things to him, than to Robert and Elaine. He accepted it because, as he himself said, "It didn't bother me". 15. I accept Robert's evidence that by the time of the wedding Norman was already unhappy about William's failure to pay even the reduced rent on Unit 1 of the Auburn property. But I infer consistently with Norman's character, as it comes through in the evidence in proceedings, that keeping up appearances and keeping disagreements within the family were very important to him. In my view, Robert is right that Norman accepted William's invitation for Norman to be on the wedding invitation and to perform the role of the father of the groom at the wedding, even though there were private disagreements between them. It was the right and diplomatic course on such an occasion. 16. In October 1998 William and Rosalba gave birth to their first child, a daughter, Katya Rose Yee. William says that after the birth Norman said to him that "Unit 1 is probably a bit too small for you to live in now that you have a baby" William says that he protested that they were "able to manage" but that Norman insisted that they move from Unit 1 into Unit 7, hinting that it would give them more room "for Katya and more children too". They moved out of Unit 1 in the Auburn property, and into Unit 7, which with three bedrooms was indeed more spacious for the growing family. Within a few years William and Rosalba had another child, their second and youngest daughter Paris Rose Yee who was born in September 2000. Norman was interested in Rosalba and William's daughters as they grew but not obviously more than the children of other extended family members. 17. William argues that Norman's decision to allow he and Rosalba and Katya to move into the larger unit, Unit 7 is incompatible with Robert's case that Norman was unhappy about William not paying rent. After all, why would Norman consent to even more of his valuable real estate being occupied by a non-rent paying relative with whom he was already unhappy? 18. The force of this argument is considerably blunted by Robert's evidence, which I accept, as to what actually happened at the time. I accept that Norman told Robert after the birth of Katya, "William has begged me to let him move into the larger unit that is vacant… I told him yes, but with the guarantee that rent would be paid of hundred dollars per week". And I accept Robert's evidence that William did in fact pay this amount for the larger unit. 19. Rosalba supports William's case that Norman offered Unit 7 to the young family and that she expressed to Norman a reluctance to move from Unit 1. On her version she has Norman then insisting on the move. In my view, this is something of a reconstruction of events on her part. It is perhaps possible that Norman was prepared to co-operate in the move, once he had extracted a promise from William to pay $100 per week. But I do not accept Rosalba's evidence on this subject to the extent that it is said that Norman initiated the idea of the move. Robert Moves Closer to Norman, William Moves Away – 2000 to 2008 1. In March 2001 Norman made his fourth will. By then Helen's daughter Tina had come to Australia and been adopted. Norman provided for her in this will, dividing his estate equally between Robert, Elaine, Helen and Tina. 2. In the 2000 to 2002 period Robert and his family mixed closely with Norman, Helen, and Tina. During those years Robert's family lived with Norman, Helen and Tina at Norman's house in Box Hill. At about the same time Robert purchased the Rouse Hill property for Norman and Norman transferred the Box Hill property to Robert. This was actually done in 2001 rather than 1991. 3. In January 2004 Norman executed a power of attorney in Robert's favour. 4. In 2004, when William was 53, he and Rosalba moved out of the Auburn property, Unit 7, to buy a property of their own in Merindah Rd, Baulkham Hills ("the Baulkham Hills property"). William says, and I accept, that his and Rosalba's decision to move out of Unit 7 was so that they could live in an area with better schools so that Katya and Paris could get the best start in life. William and Rosalba still live at the Baulkham Hills property. 5. But the move from the Auburn property to Baulkham Hills provides the background for another controversy. Rosalba's evidence was that after she and William announced their plans to move from Unit 7 to the Baulkham Hills property Norman came over and said to her words to the effect "It would be best for you to stay at Auburn. It is hard these days with a young family and having to pay childcare and a mortgage. You should stay here. Don't worry. I will look after William. Auburn will be his one day. Unit 9 was one of his first homes in Australia. He started his family here and this should be his". Rosalba says that Norman appeared to be very fond of her and that she certainly was fond of him at the time these words were said to have been spoken and right through until his death. 6. Norman's apparent fondness for Rosalba can be accepted. Whatever internal doubts Norman had about William's business acumen, he had no reason to dislike Rosalba and I accept her evidence that such mutual fondness was genuinely expressed by each of them. But the Court does not have sufficient confidence in Rosalba as a witness to accept that the parts of this conversation which allegedly promised the Auburn property to William actually took place. Moreover, the holding of such a conversation in this context is improbable. If Norman did have the relationship with William that is claimed and to go well beyond that of uncle and nephew, it is difficult to see why he would not have had this conversation with William first, or with both William and Rosalba. William gives no evidence of any similar conversation between himself and Norman. 7. The rest of William's evidence did not take this issue any further. He said that his sister Yvonne told him that Norman was going to leave a unit in the Auburn property to him. He was criticised in cross-examination for not putting that in his affidavit. But the criticism is perhaps a little too sharp, in that the evidence was hearsay, although it was probably admissible once Yvonne was called to give evidence. But Yvonne gave no evidence to support having conveyed such sentiments about Norman's testamentary intentions to William. 8. Norman's failure to include William in any of his wills weighs heavily against Norman saying any such thing to Rosalba. Norman's way of life and sense of family responsibility bespeak an upright character who would be unlikely to promise something that he did not deliver. And there is much evidence, that the Court accepts, that Norman took Robert into his financial confidence throughout his life. It is quite strange that if William had the relationship "well beyond" that of uncle and nephew that he claims that he did, that Norman did not take him into his confidence in respect of this aspect of his alleged testamentary intentions. Instead he seems just to have shared his proposed generosity as an aside with Rosalba, when they were chatting about moving house. 9. William says that despite moving to the Baulkham Hills property and having the time commitments of bringing up two young daughters, he continued to see Norman five to seven times a year. A number of photographs taken over the years show Norman with William and Rosalba's family, in pleasant and relaxing family situations. I accept that Norman kept up contact with William, Rosalba and their daughters. But the nature and quality of that contact requires further analysis. It is dealt with in more detail later in these reasons, where the analysis shows that there is little to support William's case that the relationship was "well beyond that of uncle and nephew". 10. On 2 February 2007 Norman made his fifth will, in which he again divided his estate between Elaine, Robert and Helen. Tina was left out of this will. 11. In March 2008 Norman made his sixth will. In this will he divided his estate equally between Elaine, Robert and Helen. The Last Years – 2009 to 2013 1. Norman was diagnosed with leukaemia in March 2012. Norman moved into Robert's house at Box Hill in May 2012 to enable Robert and his family to look after him, as his leukaemia progressed. 2. On 27 June 2012 Norman made his seventh and last will. In this last will he made provision for Helen, Tina, Robert and Elaine. By this time Norman's condition was deteriorating and he was in need of guardianship. On 4 September 2012 Robert appointed Norman to be his enduring Guardian. 3. William had little contact with Norman during Norman's last illness. William's behaviour during this period was hardly consistent with a person who had a close relationship with Norman. There were strong contrasts between William's and Robert's evidence about this critical period. As the reasons below show, I generally prefer Robert's evidence about the period. Robert's offer to take Norman in during his last 15 months to live at Robert and Karen's home is consistent with the close father-son bond that in my view existed between them. By this stage of Norman's life relations between Robert and William were not particularly close. It can be accepted that to some degree the lack of closeness between the two cousins may well have deterred William to a degree from making contact with Norman because he would generally have to go through Robert. But the Court's findings below show that William's failure to take ordinary steps to enquire about the welfare of his uncle in the final phase of his life cannot be accounted for by the alleged difficulty of trying to negotiate his way past Robert as gatekeeper to his father. William showed a marked failure to reach out towards Norman during this period of about 15 months between his leukaemia diagnosis and his death. 4. Robert's evidence, which I accept, is that during this period he, Robert, did not receive "a single phone call from William inquiring about [Norman's] health or offer of assistance". William was well aware Norman was gravely ill. William knew that Norman had moved in with Robert, because he was very ill and probably dying. Robert did not at any stage in these last 15 months tell William that William should not attempt to contact Norman. Even William accepts that he "hardly spoke" to Norman after he moved to Robert's place, although he disputes that he "hardly spoke" to Norman before he moved to Robert's place. William conceded in cross-examination that in relation to visiting Norman at Robert and Karen's "I didn't go as often as I would like to", using the fact that he had three jobs and two children as his excuse. But Robert had family and business obligations which were no less demanding than William's. So far as assisting with Norman's medical care was concerned William went so far as to concede that "Yes, I didn't attend at all". But he qualified this with the explanation, that "at that time he was living with Robert, who was taking him" or that apparently Uncle Phillip was doing so. 5. But William had another explanation for not visiting Norman. He explained that when Norman was not living with Robert that "I visited him more" but when Norman moved in with Robert "it was a little bit difficult, oh, I wouldn't say difficult, it was just, I just don't go as much". William seemed to be implying that his poor relationship with Robert made it more difficult for him to access Norman at Robert and Karen's house in these last months. 6. I partly accept William's account that could perhaps be summed up as there being frostiness between himself and Robert. Some frostiness in the relationship between the two was quite evident in the court room and had obviously been long-standing. It was no doubt exacerbated by this litigation. But in my view it had its origins in Robert's view that William had squandered the life opportunities that Norman had given him. It was evident as Robert gave evidence in the witness box that he probably would not have been spontaneously warm towards William at this time just before Norman's death. 7. But these difficulties do not account for William's comprehensive lack of effort in Norman's direction at this critical time. I have accepted Robert's evidence that William did not call him inquiring about Norman's health. Nor did William offer to go on a roster, or as a backup, or to assist Elaine or Robert with respite care, or do other ancillary tasks in relation to Norman at this time when Norman's care demands could reasonably be expected to be high. This conduct in my view is almost impossible to reconcile with William's case that he felt his relationship with the deceased was "something well beyond that of an uncle and nephew". A sense of obligation from such a close relationship would be likely at least to generate enquiries about the health of the deceased and offers of assistance. 8. But it is not just Robert's evidence that is a basis to infer William made no enquiry about Norman's medical condition in the last 15 months of his life. Even in the witness box, almost 2 years after Norman had died, William was unable to give a very coherent account of Norman's medical condition or the medical assistance he received in the last year of his life. William could not name any of Norman's doctors. William did not attend any hospital or medical appointments with Norman. William was aware that Norman was suffering from leukaemia but he was not able to describe any of Norman's symptoms other than that he thought Norman "felt dizzy or something like that, not enough blood". When pressed as to why he did not know more, he simply explained "look I never got into asking, you know, even with my parents". William stated that Norman had chemotherapy. But that was not correct. I accept that William did visit Norman at Robert's house twice when Norman was staying there. But whatever tensions there were between Robert and William in my view they did not obstruct these visits. Robert came across to the Court as having great respect for his father, Norman. It is inherently unlikely that he would have prevented a relative from having contact with his father and William accepts that on these two visits Robert welcomed him into the house and he was able to go to the part of the house to see his Uncle Norman. 9. When William was asked why he only went to visit Norman twice between October 2012 and May 2013 his answer was "I wasn't comfortable to go to Robert's house". But he could not really give a compelling account of what his discomfort was. He agreed that he was not told that he was not welcome there at Robert and Karen's house and his own evidence indicates that Robert put no obstacle in his path to prevent him seeing Norman there. The highest his explanation of discomfort came was, "he [Robert] didn't say anything [to William]". But even if Robert did not welcome William with spontaneous warmth, he clearly did not stop William from seeing Norman. 10. These two visits far better represent the attendance pattern of a nephew or other more distant relative than they do of someone who regarded himself as being in a very close relationship with the deceased even akin perhaps to that of the son. Robert had Norman stay with him so that he or other family members could look after him on a daily basis. William's visiting patterns in my view demonstrate objectively his own contemporaneous judgment about the quality and closeness of his own relationship with the deceased. He was a nephew who visited consistently with the expectations attending such a relationship with an uncle and no more. Nothing in Robert's conduct reasonably accounts for William being deterred from visiting more often than twice in this period. 11. William seriously damaged his credibility, as he propounded his narrative of some of the events of this period. In my view he was giving answers without regard to their truth when he was attempting to deal with an effective cross examination about his mobile phone calls to Norman, whilst Norman was living with Robert just before his death. 12. The issue began with Robert's affidavit of 17 February 2014. In this affidavit Robert gave an account that after Norman was diagnosed with leukaemia, and before he died, for a period of 15 months he and Karen did not receive a single phone call from William enquiring about Norman's health or offering assistance, despite the fact that William was well aware of Norman's condition. The Court accepts this evidence in fact is correct. 13. But to blunt the effect of this evidence on an important issue relevant to William's relationship with Norman, he gave misleading evidence to the Court. William attempted to answer Robert's evidence by suggesting that he, William, had made contact with Norman during this period by mobile telephone. Consistently with this story at first, William agreed in cross-examination that he only called Norman on his mobile phone during this period and not by means of any other telephone. This led the estate to obtain William's mobile telephone records for about the last 10 months of Norman's life. These billing records show that there were no phone calls made on William's mobile telephone to Norman's mobile phone during that period. 14. This was difficult for William to explain. But he tried with increasing artificiality to maintain his version that he had tried to contact Norman during that period. And in doing so he came to propound some highly improbable scenarios that I do not accept were accurate and showed him to the Court to be a person prepared to say whatever it took to maintain his case, without regard to truth. 15. William's first version was that perhaps he had used his sister Yvonne's mobile phone at her home when he was calling Norman. Leaving aside for a moment the question of why he would restrict himself to calling Norman to occasions when he was only with his sister - hardly a position compatible with a close relationship with Norman - Yvonne herself did not support this version. She said that she would call William to see whether he had time to go with her to see Norman and that this probably only happened about three times. 16. But William had other explanations. William was constantly on the road with clients. There was no convenient time. Norman was quite busy himself. Sometimes Norman was elsewhere, away from Robert's place, and at Helen's place. Sometimes William could not get through on the telephone. None of these explanations was very credible. None of them is consistent with a close and caring relationship between William and Norman right up until his death. 17. Why Norman being away from Robert's place mattered was never explained. William was purporting to call Norman on Norman's mobile telephone. There was no reason to believe that Norman's location would make any difference to whether calls to Norman's mobile phone would be recorded or not. William did ultimately say in cross-examination that he normally did not call Norman much because "it is a bit hard to get to him". 18. William gave other explanations that both Helen and later Robert tried to stop Norman taking calls from Yvonne. But if that is right, the evidence does not sit well with William's earlier version that he called Norman from Yvonne's place. And the question arises: why, in the absence of mobile phone communication, did William simply not just attempt to go around and see Norman at Robert's place more often? But this avenue was closed. The mobile phone communication had already been advanced as an explanation as to why William had not gone to see Norman in person. And I have earlier in these reasons accepted William's own evidence that Robert did not prevent William from visiting Norman, when Norman was staying with Robert and Karen. 19. None of William's evidence was reliable on this subject. Importantly the episode shows that William was prepared to distort his evidence to advantage his case rather than make the truth his first choice. 20. Norman reposed a great deal of financial trust in Robert in the last months of his life in a manner which had no parallel with William. In November 2012 Norman instructed that 3,333 shares in N & D Yee Pty Ltd be transferred to Robert. In October 2012 Norman's property at Adelphi Street, Rouse Hill was transferred to Robert. In October 2012 $358,000 and then a further $278,000 was transferred by Norman from his term deposit account to Robert, in part to cover Robert for Norman's ongoing expenses and funeral expenses. Norman directed Robert in November 2012 to pay himself (Robert) and Elaine $3000 per month from Norman's bank account. In November 2012 Norman instructed that 1389 shares in N & D Yee Pty Ltd were to be transferred to Elaine giving her a one third interest in the shares in that company. The Funeral and the Eulogy 1. Norman died on 13 May 2013. Robert organised Norman's funeral. Along with many family members such as Helen, Elaine and Tina, Robert and Karen and many acquaintances, William and Rosalba together with their daughters attended the funeral. 2. The funeral led to family tensions. William called Robert after Norman's death asking for Rosalba to have the opportunity to give a eulogy at the funeral. Robert was strongly opposed to the idea. His reasons were simple. He thought that William had been quite unsupportive of Norman during Norman's final illness. Robert found William's proposal confronting. It was even more confronting for Robert when William told him that he felt unable to deliver the eulogy himself and wanted Rosalba to do it in his place. Robert did not think Rosalba was entitled to give a eulogy and he said so. 3. I accept William's evidence that together he and Rosalba composed a eulogy. William says he was not able to give the eulogy. I doubt he was ever personally driven to give it. In the end Rosalba delivered it. In my view giving the eulogy was always more her idea. 4. Both sides sought to take forensic advantage of these events, which were treated as emblematic of their own respective entitlement to recognition as a part of Norman's life and the lack of bona fides of the other side. Resolution of what happened about the eulogy is quite important in the Court's assessment of the parties in these proceedings. 5. When Robert told William he did not agree to Rosalba giving the eulogy, William reacted strongly. I accept Robert's evidence that William said to him "You don't know who you are dealing with here… I'm not the guy you should mess with… You can't cut me out of this… You can't stop Rosalba speaking…Unless you grab my wife in the church, there is no way you can stop her from speaking". 6. These were strong words. It is not surprising Robert still remembered them. I accept they were said, not just because I prefer Robert's evidence on the issue. But the words reflect what the Court assesses to be an underlying dynamic of William and Rosalba's relationship. The statement "You can't stop Rosalba" is a very accurate description, in my view, of Rosalba's attitude to many things and many people, including her husband and his family. Rosalba has a forceful personality. Her oral evidence could only ultimately be contained at times by firm directions from the Court: to stop questioning her questioner, to attend and respond only to the questions asked, and to avoid arguing her own case. She is, in my view, a person who, if she set her mind to giving a eulogy, could not be stopped. She felt she, or her husband were entitled to do so. In my view, she acted on her sense of entitlement by forcefully insisting on her claimed right to give the eulogy. 7. Robert's account is challenged because he did not contact the priest and ask him to take control. But I accept Robert's explanation that he "did not want to make a scene" and "it was a stressful time and I didn't think of going to the priest". 8. Robert's wife Karen confirmed her husband's evidence on this topic. Karen says William's statements were made during a telephone call. I accept Karen's evidence, that she was listening to the call on speakerphone. Karen Yee's evidence was especially convincing when she spoke movingly of Robert being upset about the contact from William at this time and the request that Rosalba to do a eulogy. She was right in her assessment that "it was a very confusing time". And I accept her statement that she "did not understand the nature of this demand" [to give a eulogy]. She was as perplexed by the request as was her husband. 9. I do not accept the plaintiff's submission that Karen Yee's evidence was unpersuasive. But it is true Karen's evidence was not wholly fresh on this issue. She had read Robert's affidavit at least about the subject of William's request for a eulogy. But I do not accept that this had any impact on her credibility. Party and Witness Credibility – William, Rosalba and Robert 1. William was youthful for his 64 years. He appeared at first to be a helpful witness, attempting to tell the truth. This was difficult for him at times, as he was being asked about events, sometimes over 40 years ago, when he was a very young man and his memory of events was unlikely to be clear. But as his evidence of his relationship with Norman progressed, it appeared to become distorted by his and Rosalba's sense of entitlement to something from Norman's estate. 2. Both William and Rosalba's credit was seriously impaired by their cross examination about a St George finance application that they lodged in September 2014 to assist in the purchase of a new car. Although this was after Norman's death the events in question occurred before the trial. And it was an occasion in which William and Rosalba had an obligation to tell the truth by giving accurate information. In my view they conspicuously failed to do either in the provision of information associated with this application. 3. The application (Exhibit 5) was lodged in connection with the financing of their purchase of a new motor vehicle. Despite William and Rosalba's somewhat contradictory explanations as to how the financial information came to be in Exhibit 5, they must have been the source of its contents. They were seeking to finance the purchase of a motor vehicle. They did speak to someone at Suttons Motors who purported to represent or be a conduit to the financier. They gave her relevant financial information. They signed the application on 17 September 2014 to represent as applicants for the finance that "the details of this application are true and correct and are not by omission or otherwise misleading". They both said in substance that by signing the document they were representing its contents to be true. But the information that they had supplied seriously overstated the strength of their financial position to assist in obtaining finance. 4. The application indicated that at the time of application the couple had credit card debts of only $10,000. In fact their credit card debt at the time was of the order of $60,000. They had so many credit cards and were managing so much credit card debt on a monthly basis at the time that I cannot accept that they were not aware then that their credit card debt was greatly in excess of $10,000. 5. The application also indicated that William and Rosalba's domestic house had a value of $900,000 and a mortgage of $257,000. But this was false. Without disputing the valuation, the mortgage over the property was then in fact $650,000, not $257,000, as can be ascertained from an affidavit William swore in these proceedings only a short while afterwards. Although Rosalba had an investment property in McGraths Hill it was not referred to at all in the application, such that any net value that it might contribute to their family balance sheet, could not now be used retrospectively to argue that the September 2014 application was not misleading. 6. William made a half-hearted attempt to distance himself from the information in Exhibit 5. Although he had seen the application when he signed it he said "I probably didn't look at it, I just signed it." But he did later say "I didn't [sign it]. My wife did." He changed position at one point and said "I suppose for them to give us a loan, they probably, like, fix up the figure a little bit or make it so we can borrow money". If this is to be accepted as William's genuine explanation for how he came to sign the document, at the least it shows his indifference to the possibility that those preparing the documentation he was to sign may perhaps be manipulating the figures without reference to the truth in order for William and Rosalba to obtain the finance they wanted. But the better explanation, in my view, as to what happened is the one that William himself conceded at one stage, at least in relation to the credit card debt: "I must have" told them. 7. William and Rosalba's respective accounts of how Exhibit 5 came to be signed and its information provided are so different that that they cannot both be right. At the least it shows that one or other of them had a very imperfect recollection of not insignificant personal events that occurred no more than five months before the trial. William said that he and Rosalba went to the car sales office, sat down at a desk and answered questions (mainly through Rosalba) about their finances which were input to a computer, and then printed out and they then signed the completed form. 8. Rosalba's account was very different. She denied being present at the car dealership when the family financial information was passed over. She claims she did not see the car physically until her husband had taken delivery of it although she says she had looked at it online. She says she thought that she had provided the correct figures for the credit card debt of $60,000, not $10,000, over the phone to Suttons Motors and later that evening that the man from Suttons came around to their home and the document was signed there. Rosalba admitted that the mortgage liability of $257,000 shown on the finance application for their domestic property was wrong at the time of the application and was actually $650,000 but she denied that she knew that the information in the document was wrong when she signed it. 9. I prefer William's evidence over Rosalba's as to what happened on this occasion. Having seen William and Rosalba give evidence the Court assesses her as such a dominant personality in their marital relationship that it is inconceivable that she would have accepted William taking on the task of purchasing a car at a dealership and then her signing the financing documents at home afterwards. 10. In my view, this episode shows that both William and Rosalba were prepared: to sign misleading applications for finance, without making reasonable attempts to verify whether they were accurate or not before they were released to the financier: and that Rosalba was prepared to distort evidence to distance herself from a misleading application. I do not regard either of them as reliable witnesses. 11. Robert was mostly a good witness who was attempting to tell the truth. But he was very effectively cross-examined by Mr Thompson. The cross-examination showed that Robert was at times prepared to put William's past deeds in their worst possible light. For example, Robert's 17 February 2014 affidavit said: "I recall that William stopped living with my parents when I as around 10 years old. William was known as 'the cool cousin', who took us to the horse and dog races. He let us drink and smoke and let us do lots of things my parents would not have approved. During the last few years of William's schooling, he 'wagged' school on Tuesdays and Wednesdays every week to go to the races. William would forge absentee notes with my Dad's signature". 1. But under cross-examination it emerged that William neither purchased cigarettes nor alcohol for Robert. He merely failed to stop Robert from purchasing alcohol and cigarettes and from smoking and drinking when Robert was out in the company of William and with no other adult supervision. And it emerged that Robert did not have any direct knowledge of whether William would forge the deceased's signature on absentee notes. This was really just speculation on Robert's part, driven in my view by his antipathy to William for bringing his claim in these proceedings. 2. Robert gave fairly unsatisfactory evidence about William not paying rent at the Auburn property and to show that William had not received a rent-free home unit from Norman. He seemed confused about when an agent to manage the unit had been engaged, whether such an agent was engaged, and even why one was engaged, so Norman could collect rent from William. His evidence sometimes had to be approached cautiously because of a tendency to see William in the worst aspect, without Robert always remembering the detail of relevant events. But in my view he was not consciously distorting his account of events and he was a witness of substantial truth. Witness Credibility – the Other Witnesses 1. Wendy Yee-Dempster another niece of the deceased was a direct and truthful witness who was honestly attempting to help the Court. I accept all her evidence. She recalls William listening to horse races whilst working at the Riverstone Restaurant. But this does not show he was a gambler. 2. Tina Lee, Helen's daughter, was a very credible witness. I accept statements she attributes to Norman about William's gambling habits and William's failure to look after the restaurant business properly. 3. Tina Yee's capacity to speak English was criticised as weaker than she actually displayed in the witness box. Her interaction with the interpreter showed that her everyday English was passable. But her capacity to communicate in formal English was nevertheless quite limited and she was less confident in formal discourse. 4. Tina's evidence should be accepted. Her account that Norman complained that William spent too much on a "fancy wedding" and did not pay rent is inherently probable, was delivered convincingly and in my view is likely to be correct. Norman abhorred extravagance and waste. Norman was kindly but "hard-nosed" in business. I accept Robert's words about Norman: "no one got a free ride" from him. Norman expected everyone to work hard and to make their own way in life. 5. Julie Soo was a good witness. But her capacity to observe events in the Yee household was limited to a period of only about 2 years. Her observations can generally be accepted. Julie Soo records Norman's complaint a few years before his death, "Bill hardly comes to see me; I don't know what's happened" is accepted. But that does not mean Norman and William did not socialise together. Julie Soo's second affidavit added detail to her account. How her second affidavit was sworn is obscure. I accept that she could have remembered the account of events she gave in her first affidavit, without having it with her to read over. She could add to her affidavits spontaneously from memory in her evidence. 6. Helen Yee was a credible witness whose evidence I wholly accept. As was Elaine Yuen and Julianne Soo. The attacks on their credit were unsuccessful. 7. The estate was criticised for not calling Phillip Yee, Norman's brother and the second defendant, to give evidence. But it was not clear on exactly what it was that he should have been called to assist the estate's case and to repel a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference. Norman's Role Assisting Family Members to Australia 1. Norman took seriously his role as the senior member of the family. With considerable personal self-sacrifice and generosity he, with Doreen's assistance, helped family members to emigrate from southern China to Australia, mostly to Sydney by providing a landing point and a safe haven in Australia for the new arrivals. 2. Both sides in these proceedings accepted Norman played this role. But the parties were at issue as to whether William was just another family member migrating to Australia like the others or whether his relationship with the deceased was something more special. 3. The evidence about these other Yee family members migrating to Australia was quite detailed. Many of them swore affidavits. Some of them were cross-examined. When this evidence is examined it shows some differences between these migrating family members and William's position. William did stay with the deceased and Doreen longer than almost all other family members. Consequently in my view he knew the deceased better than many of the others. The deceased also gave William a financial start in life in Australia by helping him into the Mandarin Restaurant in Parramatta. But that was a long time before Norman's death. 4. But the differences are fairly marginal. Some of the other family members did stay with the deceased for quite a long time. And it is evident that some of them did receive financial assistance. A brief survey of the evidence in relation to these other family members shows this. 5. Norman arranged for Julie Soo and her husband James Soo to come to Australia. Julie was Norman's niece. She lived with Norman and Doreen when they occupied a flat above their fish and chip shop in Lidcombe and later in Auburn. She was still living in the household when she went to high school and only left Norman and Doreen's household when she married James. 6. James and Julie Soo had a daughter, Juliana. Unfortunately James and Julie were deported from Australia back to Hong Kong for three years with another younger sister Jenny. Juliana was only four years old at the time. James and Julie left her with Norman and Doreen when they were back in Hong Kong. She stayed with Norman and Doreen on and off for about 7 years. 7. Norman also assisted Karen Cheung, his niece, to migrate to Australia by allowing her to live in the family home for about nine or 10 years after she migrated and until she too married. I accept Robert's evidence that she referred to the deceased as "Uncle Norman" or "Gong Gong", the same term that William used of the deceased. 8. Norman also assisted another member of the Cheung family, Peter Cheung, his nephew, upon his arrival in Australia. He did not live with Norman and Doreen. Norman employed Peter as a cook in one of the family restaurants. Peter Cheung married Alice, who the deceased had also assisted by providing her with work in one of the Yee family restaurants on her arrival in Australia. 9. Norman had two younger brothers, Phillip and Victor. Norman assisted them both to migrate to Australia. Phillip is older than Victor. When Phillip migrated, Norman employed him from time to time in the family businesses, until Phillip was able to start his own business. Together they later opened the Yee's Palace Restaurant at Rouse Hill, which Phillip ultimately took over when Norman purchased the plastics factory. 10. I accept Robert's evidence that Norman sponsored Victor Yee, the deceased's youngest brother, to migrate to Australia. 11. Norman assisted other members of William's immediate family. Norman is the oldest of his siblings in Australia. But he had an older brother in China, Mun Way, William and Yvonne's father. Norman also sponsored Thomas Yee, William and Yvonne's brother, to come to Australia. When Thomas migrated Norman gave him employment in the Lae Wah Restaurant in Riverstone, the Riverstone Restaurant. Later Norman sold the Lae Wah Restaurant in Riverstone to Thomas. 12. Norman and Doreen also assisted members of Doreen's family to migrate from China. They organised employment at the Mandarin Restaurant in Parramatta for Ron Tam, Norman's brother-in-law and for his wife Lilly Tam. 13. The deceased also sponsored Mr Alex Yun's migration, a man who ultimately married Robert's sister, Elaine. Mr Yun is now deceased. Norman arranged a job for Alex Yun in the Riverstone plastics factory, where he worked with Norman, Doreen and Robert until this business was sold in 1990. Norman gave more tangible assistance to Alex Yun because of his marriage to Elaine. When Elaine and Alex married, Norman and Doreen had vacated their old family home in Melville Street, Parramatta, Alex and Elaine moved into that house. Elaine still resides in that property. Norman paid for Alex's funeral. 14. I accept that William lived for about 10 years with Norman and Doreen. Yvonne lived there for four or five years. But at least one other family member whose migration to Australia Norman arranged also lived there for a similar period, Karen Cheung. But some other family members who had migrated to Australia lived there for almost as long. I accept that Julie Soo lived with Norman and Doreen for about six years and Juliana Soo for about the same period. 15. Norman and Doreen took all their family responsibilities seriously. In addition to assisting these many family members to settle into Australia, Norman and Doreen also cared for each of their mothers, Robert Yee's two grandmothers. Robert Yee's maternal grandmother, A Buk lived in the family home from 1963 until 1976. Norman's mother, Ah Ngin lived with Norman and Doreen on and off for about 10 years but she was also taken in from time to time by Norman's siblings. 16. In summary, William stayed with Norman and Doreen for a longer period than most other migrating family members but he was not unique in the length of his stay which was equalled by Karen Cheung. William says he came back and stayed with Norman and Doreen at a later time. But this is contested. Norman and William's Relationship 1. Robert's case was that Norman's and William's relationship was no closer than the relationship Norman had with many family members that Norman sponsored to migrate from China to Australia. Robert says, and I accept, both Norman and Doreen were the eldest members of their family groups and that they were expected to assist their siblings and their families. 2. The deceased only stood in as a father figure at four weddings: for Robert, Elaine, William and Tina. Although, as these reasons have indicated, many family members stayed with Norman after their emigration from China, only these four were blessed with Norman's role as father at their wedding. But the reasons for this in William's case have been explained above. 3. Robert accepts that William saw the deceased "often" to socialise. The Court had the impression Robert liked socialising less than William and the deceased. Robert was the opposite of William; hard working and successful. Robert was somewhat disdainful of William's prodigal habits. Norman worried about William being "Mo Yung", a wastrel. But that did not stop him seeing William. 4. I accept Karen's evidence that after 30 years in the Yee family William's description in his evidence of his relationship with Norman was closer than she, Karen, actually observed it to be. She was a compelling witness in this aspect of her evidence, as well. Perhaps one explanation for the different perception really is that the William – Norman relationship was not as close as William says, but nor was it as distant as Robert and Karen say it was. The relationship William describes he had with Norman was partly experienced away from Robert and Karen. 5. Norman was disappointed with William's business acumen and that William's businesses were not doing well. This impaired but did not destroy their relationship. Norman's regular expressions of disappointment in William show that Norman continued to be troubled by William falling short of Norman's view of proper family standards. Norman had expectations of William that he should do better. These were probably the expectations that came from being part of an extended family, bearing the family name and potentially being able to affect the family's reputation. But Norman's disappointment with William's business acumen did not lead him deliberately to cut off communication. The Norman-William relationship became distant in the last ten or more years of Norman's life. But in my view, this was more because William did not put much effort into the relationship, as these reasons have elsewhere found. Moreover, Norman had become used to hearing bad news from and about William for so long that the relationship was not one that he was strongly motivated to keep renewing, except perhaps out of a sense of family duty. 6. Some of William's evidence about his relationship with Norman was quite puzzling. When Mr Crossland put to William that he "didn't feel close to… Norman…, the man?" William's response was "he is not close to a lot of people. That's how he was". This came across at the hearing as an admission that William did not feel close to Norman. William sought to attenuate the effect of this admission with the explanation that Norman was not "close" to anyone because of a reticent personality. William then sought to assess Norman's relationship with his son by saying "I don't think he was close to Robert" and repeated his statement "he is not close to anybody". 7. In context, in this evidence William was implying that the deceased socially somewhat went through the motions with relatives, but did not feel for them, so it was hard to assess the quality of his relationships. Yet William still professed that at least from his perspective he was "very close" with Uncle Norman. Despite this alleged closeness he could not give much of an account of his understanding Norman's feelings, the quality of Norman's advice or Norman's philosophy of life. Nothing of this personal depth appears in William's evidence. 8. Why was this so? William puts it down to a general impediment that William perceived in Norman's communications: "Look in all the time we growing up, he doesn't say much. It is very hard to work out what he is thinking" and "The only time you would spend a lot of time with him was either play cards, mahjong, yum cha. He doesn't say much". Perhaps the real explanation Norman wasn't saying much is that he was just enjoying his mahjong with many others. 9. William was incapable of articulating much insight into the deceased's feelings, opinions, philosophy of life, values or important relationships. William could throw little light on the deceased's interior life, principally because, in my view, he did not understand it. This was an indicator of the lack of real closeness between them. 10. One would not describe William's contact with Norman after Norman moved into Robert's house as very frequent. But William himself only said he saw Norman "a bit more" just before he moved into Robert's house than he did after. This tends to indicate that even before Norman's move to Robert and Karen's house, the contact between the two may only have been three or four times a year rather than two or three times a year. I accept William's evidence that he went to yum cha with Norman a few times a year. In my view, this was probably about three or four times a year. If it was not yum cha it was some other similar family communal activity and one to which Robert probably did not go. 11. Yvonne's evidence supports the lack of any obstacles to William visiting Norman at Robert and Karen's house. Yvonne agreed that William had no difficulty visiting Robert's house "because they got along". She visited Robert's house with William and agreed "Robert was friendly to William on those occasions". She also describes the family yum cha gatherings at which she and William and Norman were present. Her evidence, in my view, very accurately described these gatherings which involved a large group with "my second uncle, my fourth uncle and my fifth uncle, the whole family, and with William's whole family and my youngest brother. We normally took up two tables". This paints a picture of William mingling at yum cha socially with Norman in a large group of the extended family of cousins and uncles. This is quite consistent with the celebration and affirmation of the uncle/nephew relationship between the two of them. But these occasions are not an indicator, in my view, of the deceased singling William out for any special treatment or of William having any special place in the deceased's affections or testamentary intentions. Norman treated many other members of his extended family in the same way that he treated William. 12. William said that Norman did not ever ask William about his financial position. I accept William's evidence that he and Norman never talked about this subject. It was suggested to William in cross-examination that Norman "wasn't interested" in William's financial position and that explains why he did not ask about it once William had left home and was making his own way in life. But William's answer to why Norman did not ask gives a useful picture of the William-Norman relationship from William's perspective: "No, we, look, all we do is mainly when I see him we either play mahjong, yum cha, food, like, I mean, hardly, we don't even talk about family stuff. The family stuff that I know is mainly from my auntie, like, he doesn't, he's just the type of person he doesn't talk much." 1. This is a picture of a large family gathering where there was little one to one conversation between Norman and William. 2. Robert and Elaine were much closer to Norman than was William. And ultimately the evidence does not show that William was much closer to Norman than many other of Norman's nieces and nephews. Robert's relationship with Norman was characterised by events which show the closeness of their bond, events in which William never participated with Norman. 3. I accept Robert's evidence that as the oldest son he was "raised with an intimate ongoing knowledge of my parents' businesses and finances". This fact was evident in many ways, small and large. Robert was a signatory in Norman's business and banking affairs from about 1982. He became Norman's power of attorney in 2004. Finally in the last years of his life Norman gave Robert the office of enduring guardianship over his person. There was no suggestion that Norman wanted to confer on William the financial or personal trust that goes with each of these offices of bank co-signatory, power of attorney and enduring guardianship. This narrative of findings contains many examples of either Norman entrusting responsibility to Robert that he never did to William, or of being generous to Robert, Elaine, Helen and Tina in a way that he was not to William. 4. William was not in Norman's inner circle. One incident at the end of Norman's life illustrates this. I accept Karen's evidence that when Norman found out that he had leukaemia he asked Robert and Karen to call Elaine, his niece Julie Soo, an acquaintance by the name of Dai Chan and his brother Phillip. I accept Karen's evidence that William was not among this first circle of recipients of such profoundly important information. William's own evidence confirms the delay before he found out about the diagnosis. It is not disputed that Norman was diagnosed with cancer on 17 March 2012. I accept William's evidence that he did not get this news until about three weeks later on Good Friday, 6 April 2012. And it is reasonably clear on the evidence that Norman did not specifically ask for the diagnosis to be conveyed to William, whose own best recollection of how he came by the news was, "well I heard about it" and "I recall probably my sister told me first". 5. William's contact with Norman in the last 15 months of his life has been dealt with elsewhere in these reasons. But the evidence of the 20 year period before that, from a number of different witnesses, reveals much about Norman's relationship with William. The frequency of that contact was explored with a number of witnesses and did not support a case of an especially close mutual relationship. 6. William's own evidence on the subject opens with his statement that he continued to see Norman "5 to 7 times a year" despite moving to different areas and having different commitments. 7. But the true frequency and quality of this contact was elusive, even within William's narrative. William explained the contact with the statement, "I see him a lot at my sister's place in Parramatta after he visit the lady friend". The contact emerges as a not especially organised time between William and Norman but as an incidental by-product of visits to William's sister. William explained "we have yum cha at least three, four times a year and on top of that, plus I visit him when he's at home by himself maybe once or twice. At least five, six times a year". 8. I accept this evidence as accurate. But it presents a picture of a man dropping in on a relative at home at Christmas or Easter or some other annual occasion and otherwise mingling with him and with other extended family relations at yum cha. Nor did William describe the yum cha occasions as especially arranged between him and Norman. So I infer, like the yum cha that has been described elsewhere in William's evidence, that it took place as part of a broader extended celebration of family. Some of this family yum cha took place with William's sister in law Jenny at Rouse Hill, and sometimes in other locations, such as Canterbury, Summer Hill and Parramatta. What appears from this evidence is this: the Yee family gather for yum cha and Norman mixes there with William as well as other family members. 9. But Norman and William did have one passion in common, mahjong. Mahjong games were generally on a weekend "whenever we have the time", according to William. When William was challenged with the proposition that there were other people playing mahjong with William and Norman on "every occasion", William, accurately in my view, characterised these occasions in the following way: "well we tried to get as many tables as possible. Everyone likes playing mahjong". Whether the mahjong involved gambling was not declared. But their shared experience of this Chinese pastime does not indicate that Norman had a special relationship with William beyond the one that he had with any of the other mahjong players. All this really indicates is that two of them enjoyed the same past-times and were compatible companions at the mahjong tables. 10. Both Tina and Helen reinforce the conclusion that personal one-to-one contact between Norman and William was at a fairly low level. Helen's evidence was that during her 19 year marriage to Norman, William visited or had contact with Norman no more than 20 times in total. William accepted that Helen would be in a good position to say who was visiting Norman. Also Tina's evidence relating to the six-year period living in the household with Helen and Norman between 1994 and 2000 was that William would come around once a year for a celebratory event, like Christmas. She did not recall William calling the house on the telephone and speaking directly with Norman. William also accepted that Tina would be in a good position to observe his contact with Norman. William's Financial Progress and the Gambling Allegation 1. William was able to sell the Mandarin Restaurant in Parramatta for about $80,000 after a few years. He reinvested $60,000 of that in a fish and chip shop in Whale Beach and the other $20,000 went into another partnership. He eventually got a job working at James Hardie Industries and by then did not have any of the capital left that Norman had sent in his direction. 2. There was a strong contest in the proceedings as to whether or not William's failure to build capital was a result of a gambling habit. In my view on the evidence it was very difficult to tell either way whether William's lack of good fortune was just poor business judgment or something more. It seemed undoubted on the evidence that William did like the occasional flutter on the horses. But whether this was a major gambling problem or not is quite unclear. 3. What is clear is that I except the evidence of witnesses such as Yvonne, Tina and Robert to the effect that Norman certainly thought that William: "had a bad habit of losing 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". These in my view may well have been factors in the deceased's consideration even if he had been minded to include William as one of the objects of his testamentary intentions. Financial and Personal Circumstances of the Parties William and Rosalba's Personal and Financial Circumstances 1. The plaintiff's family budget is unsustainable. William and Rosalba's net monthly income is about $7,500 but I accept their monthly expenditure is about $14,000. They have an ongoing monthly deficit of about $6,500. They only had about $300,000 combined equity in their residence and their investment property at the time of the trial. If their expenditure remains double their income and if the value of their assets does not change, within less than four years they will run out of assets to finance their present lifestyle. 2. At present William and Rosalba have a very large number of credit cards, some 18 at the time of trial. They are staying afloat by juggling the payments among these credit cards in what in my view is a unsustainable spiral of debt. They cannot meet their debts from their current earnings. 3. William is currently employed as a care worker by NSW Family and Community Services earning $2,280 per month. He is also employed as a casual bus driver and as a cook earning him up to an additional $200 per week. 4. Rosalba works as an administrative registrar earning $4,875 per month and Rosalba also received a carers allowance of $115 a fortnight to assist in the care of one of the children. 5. A financial crisis may well come sooner when the plaintiff's present borrowings from the Commonwealth Bank of Australia ("CBA") reach the bank's permissible loan to valuation ratios. At the time of hearing, William and Rosalba's real estate loans were structured in the following way: Property Estimated Value Liabilities Residence $900,000 $507,000 $651,272 $144,272 Investment $400,000 $257,000 Property TOTALS $1,300,000 $908,728 NET EQUITY ------------- $391,728 1. Rosalba was across the detail of their family expenditure. She controlled the family finances. She was a firm witness about financial matters. As in other matters she was strong in her opinions. 2. The dire state of William and Rosalba's finances was deployed on both sides of the proceedings. William argued that he was in such great financial distress that given the size of Norman's estate and nature of their relationship, that adequate provision had clearly not been made for his proper maintenance, education or advancement in life. 3. Robert used the same material to try and answer William's case. He contended that William's debts were evidence: that William had wasted the assistance Norman had given him over many years; and any order for provision made in William's favour would only be used to satisfy William's creditors and would not go to William himself. 4. Part of William's argument accepted that he had not done justice to Norman's expectations of him. But William invoked the statement that "a just father's moral duty is to assist the lame ducks amongst his offspring, provided they be not morally or otherwise undeserving": Re Hatte [1943] St R Qd 1 ("Re Hatte") at 26. But William's application of Re Hatte is difficult. I have concluded that there was not a father-son relationship with Norman. 5. At the time of hearing Katya and Paris were still teenagers. They both have a number of medical problems which need not be detailed in these reasons. I accept William and Rosalba's evidence about them fully. The medical needs for the two children described by William and Rosalba can be fully accepted and in my view they are substantial. William wishes to pay for the ongoing education of Paris and Katya at School. The ongoing educational requirement Katya is almost $30,000 per annum and for Paris $46,000, together with $20,000 for school related expenses. 6. Rosalba has a number of medical problems including back and neck problems and I accept William's evidence that medical treatment for her for the rest of her life could be accurately estimated at $100,000. But Rosalba and William have far more immediate needs. They have a mortgage debt of over $760,000, personal loans of $20,000 and accumulated credit card bills of more than $140,000. Because of the large deficit in their ongoing expenditure William and Rosalba have not been able to save for superannuation. William estimates that he would require an amount of $350,000 for his superannuation. I accept this is accurate and it may even be an underestimate. 7. William and Rosalba also wish to deploy about $30,000 to pay for home repairs which they have all detailed and which are in my view are quite reasonable. 8. Were there factors warranting the bringing of this application, in my view, William and Rosalba would have quite a strong case for a substantial order for provision out of the estate. Because of the Court's reasoning in relation to factors warranting, in my view it is neither necessary nor appropriate to formulate what that order for provision would have been. Robert and Karen's Financial and Personal Circumstances 1. At the time of the hearing Robert was employed as a director and operations manager for Key Medical Pty Ltd, a medical importing company. He has been employed in this capacity since 2001. 2. He is a partner in the Key Medical business and a 50 per cent owner of that company. For the three years prior to his swearing his principal affidavit in the proceedings in February 2014, he earned $107,000 gross per annum or about $65,000 net. But he receives dividends from Key Medical of the order of $95,000 gross per annum. The dividends are distributed through the Robert Yee Family Trust, of which he is the trustee. The beneficiaries of the family trust are himself, his wife Karen Yee and their two children Jared and Caden. 3. Karen Yee is also employed by Key Medical and receives a wage of approximately $40,000 gross per annum or $28,000 per annum net. 4. Both Robert and Karen Yee receive superannuation distributions from Key Medical of the order of $30-$40,000 per year, depending upon Key Medical's trading performance. 5. Both Robert and Karen Yee receive income from a number of investment properties in Rouse Hill, Avoca Beach, Concord West and Castle Hill. Karen Yee and another investor co-own the Concord West property and the Castle Hill property. The Rouse Hill and Avoca Beach properties together generate rental income of about $860 per week. The co-owned properties at Concord West and Castle Hill have their rental income paid into Key Medical from which Robert and Karen do not receive a separate distribution on account of this rental. But the benefit of the rental is enjoyed as part of the dividends that they receive from Key Medical of about $95,000 per annum gross. Robert and Karen have almost $250,000 on deposit with bank accounts earning about $9,000 in interest per annum 6. Robert also holds two-thirds of the share capital of N & D Yee Pty Ltd which owns the whole block of home units at Station Road, Auburn, the Auburn property; the same units in which William lived for a period. N & D Yee Pty Ltd receives rental income from the Auburn property units of about $10,000 per month. But since the shares in N & D Yee were transferred to Robert, the company has not distributed income and its profits have been retained. 7. Shortly prior to the trial Robert and Karen Yee purchased a property at Culburra Beach which they proposed to let out for holiday rentals. 8. Robert and Karen Yee estimated their assets and liabilities in summary, as follows: Robert and Karen Yee's Balance Sheet Assets 1. Real Estate (held singly or jointly $4,735,000 2. Shares (in Key Medical and N & D Yee) $1,650,000 3. Cars and Boat $94,000 4. Superannuation $330,000 5. Personal and Household Effects $100,000 6. Bank Accounts $247,000 Liabilities 1. Westpac - Mortgage Debts $1,965,000 2. NAB - Karen - Mortgage Debts $385,000 3. Credit cards $10,000 $2,360,000 Net Position --------------- $4,786,000 1. Although Robert and Karen's household income comes from a number of different sources, Robert calculates their total annual outgoings (being a mixture of investment related tax-deductible outgoings and personal expenditure) to be of the order of $306,000. This probably fluctuates, because their annual income barely meets this level of annual expenditure. Their total joint net income, using their net salary as the basis of calculation, and analysing the rental income from the Rouse Hill and Avoca Beach properties, can be roughly calculated. The calculation of family income is: salary of $93,000, dividend distributions from Key Medical of $95,000, superannuation distributions of $40,000, bank interest of $9,000 and rental from the Rouse Hill and Avoca Beach properties of $45,000. All these figures have been rounded and together total $282,000. 2. The relatively high levels of outgoings in relation to overall family income are consistent with the fairly high debt levels of $2,350,000 that Robert and Karen still have over their investment properties. Although it is probable that in a financial recovery they have something of a safety valve: they are able to draw down funds from N& D Yee Company Pty Ltd, which is still accumulating rental income from the Auburn property without paying it out to Robert or Karen. But the picture presented in cashflow terms is nevertheless reasonably tight. 3. Robert and Karen have a number of projected financial needs. Their family home is about 35 years old and work needs to be done to it to replace driveways, replace the septic system, undertake roof repairs, paint the entire premises and replace the air conditioning system, all of which it is estimated will cost between $300,000 to $500,000 4. Robert and Karen need to anticipate their retirement. Robert Yee estimates he and his wife will need a further sum of $3 million in superannuation. But the precise basis for this estimate is unclear and the figure is not very reliable. But it can be said that upon retirement it would be necessary to reduce some of the substantial mortgage debt over Robert and Karen's investment properties. 5. Their projected expenditure includes school fees and the cost of tertiary education. At the time of the hearing they had two children at school. By the time of this judgment they should have only one child at school. But they will encourage their children to complete tertiary education. They already allow almost $36,000 in their annual expenditure for school fees, with a further $7,200 for tutoring. This category of expenditure is likely to continue in one form or another in future for a number of years. 6. On top of these financial demands, the personal circumstances of family members points to further foreseeable expenditure. Robert and Karen's two school-aged children have learning difficulties and some medical problems that do not need to be detailed in these reasons. I accept Robert's estimate of the cost of assisting them, providing them with tuition and additional medical care of the order of $100,000 over the course of the next 10 years. And Karen had spinal surgery in December 2012, which may lead to additional future treatment. And Karen has problems with her eyesight that may progress, which could make a very substantial difference to Robert's working capacity were it necessary for him to spend more time at home caring for her. 7. Robert was born in July 1960 and was aged 54 at the time of trial. Karen is about four years younger than Robert. But they are both at an age where retirement beckons and where the risk of medical problems begins to increase. Robert already suffers from some high blood pressure, elevated cholesterol levels and has sleep apnoea. Karen has endured continuing pain after the operation on her neck. The Estate 1. In light of the conclusions reached by the Court below in relation to factors warranting it is not necessary to detail the assets of the estate. In the executor's affidavit the executors estimate the gross distributable value of the estate as $718,108.83. 2. There were a number of other prescribed property transactions close to the deceased's death that may qualify as notional estate of the order of at least $3 million and arguably more. The estate was plainly a very substantial one. 3. There were also issues about the possibility of the estate including a dwelling house in China; and, it was conceded that the estate has part ownership of such a dwelling house but whether it has any value was not established. That may not matter because of the substantial value of the rest of the estate. For the Court's present purposes these figures in my view are sufficient. Applicable Legal Principles "Eligible Person" Succession Act, s 57 1. The applicable legal principles are not in contest. For an order for provision to be made under Succession Act, s 59 in favour of an applicant, the Court must be satisfied that the applicant is an "eligible person" within Succession Act, s 57. The estate accepts that the plaintiff qualifies as an "eligible person" under Succession Act, s 57(1)(e) as a person who was wholly or partly dependent upon the deceased and who was a member of the deceased's household. He made his application within time. Factors Warranting Provision from the Deceased's Estate 1. William must establish "factors warranting" his application, which is based on eligibility under s 57(e). If the Court is to proceed to grant any order for provision, establishing "factors warranting" is required by Succession Act, s 59(1):- "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57—having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both." 1. The question of what are "factors warranting" has bedevilled the Courts since family provision legislation was first passed in this form in 1982. The vagueness of this aspect of the legislation has been much criticised. Despite that legislative defect, the law has become more certain through judicial exposition. 2. The classic statement explaining what are "factors warranting" is that of McLelland J, as His Honour then was, in Re Fulop (1987) 8 NSWLR 679 ("Re Fulop"): that the factors are, when added to the facts that make the applicant an eligible person, factors which give the applicant the status of a person who would generally be regarded as a natural object of testamentary intention by the deceased. See also: Churton v Christian (1988) 13 NSWLR 241, Diver v Neal [2009] NSWCA 115, Penfold v Perpetual Trustee Company Ltd [2002] NSWSC 648, Evans v Levy [2011] NSWCA 125, Porthouse v Bridge [2007] NSWSC 686 per Bryson J, Drury v Smith [2012] NSWSC 1067 per Hallen AsJ, Morgan v Public Trustee of New South Wales [1999] NSWSC 1112 per Macready AsJ and Meers v Permanent Trustee Co Ltd [2000] NSWSC 1108. These authorities indicate that the traditional Re Fulop view of "factors warranting" has been in competition for some years with the Court of Appeal's statements in Brown v Faggoter Brown v Faggoter [1998] NSWCA 44 ("Brown v Faggoter") which offer another test of "factors warranting": that an application might be warranted if the applicant has reasonable prospects of success. 3. This conflict has been commented on in the Court of Appeal, in Evans v Levy [2011] NSWCA 125, and in Porthouse v Bridge [2007] NSWSC 686 by Bryson J. I agree with Hallen AsJ's view that the trend of authorities does not favour the view suggested in Brown v Faggoter, although the Court of Appeal has not said that Brown v Faggoter is wrong. 4. It seems to me looking at the development of this line of authority and especially what the Court of Appeal said in Evans v Levy, that the aspect of prospects of success, mentioned in Brown v Faggoter as a possible factor warranting, cannot be a decisive factor on its own. The authorities do not suggest that the applicant's prospects of success cannot be taken into account as a factor warranting. This seems to be self-evident from the reasoning of McLelland J in Re Fulop and from Churton v Christian, which both show that there must often be a substantial degree of overlap in practice between (1) the factors warranting, and (2) those matters which must be addressed in determining whether the testator has made adequate provision for the applicant. 5. In Diver v Neal [2009] NSWCA 54, Basten JA (with whom Allsop P and Ipp JA agreed) said that where factors warranting were to be proved, "each issue to be determined involved identification of the relationship over the course of their lives". Adequate Provision 1. The plaintiff is an "eligible person". Even if "factors warranting" were demonstrated, Robert contests that an order for provision should be made in William's favour. The test of whether provision should be made in any case is set out in Succession Act s 59(1)(c):- "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both." 1. There are many judicial statements summarising the operation of what is said to be a provision which involves a two-step decision making process. For example in Singer v Berghouse (1994) 181 CLR 201 at 209, the High Court of Australia said of the test under the previous legislation:- "The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co8. The determination of the first stage in the twostage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder9, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." 1. Whether the two-step test operates with the same full vigour in the current legislation has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case, which is a clear one on the question of whether or not adequate provision has been made for William. 2. Other authorities explain in greater detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ in Drury v Smith [2012] NSWSC 1067 at [153], [154], [155], [158] and [160], which relevantly provides: "[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" [154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." [155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." … [158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." … [160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."" Applying these Principles Factors Warranting 1. The plaintiff identifies several possible claimed s 59(1)(b) "factors warranting". First, the plaintiff asserts that there was a level of intimacy between William and Norman which extended well beyond the relationship of nephew and uncle. William submits that whereas a nephew might not have any particular claim against an estate by reason of that relationship alone, this case is different because of a relationship founded on 10 years' residence and which continued by Norman expressing a strong interest in William's welfare and his family's welfare throughout his life. 2. But this is not persuasive for two main reasons. William was not the only young family member who stayed with the deceased for lengthy periods. Moreover, Norman expressed a strong interest in the welfare of many other family members apart from William. Norman saw that as part of his role as family patriarch for the benefit of many family members. What Norman did for William hardly marked him out as special among the family. 3. The second claimed factor warranting is that only William, Robert and Elaine lived full-time with the deceased as they grew up. Robert disputes this proposition, contending that other young members of the extended Yee family travelled to Australia and lived with Norman and Doreen. 4. It is not correct to say, in my view, that William stayed with Norman and his family longer than any of the other young relatives emigrating from China. Thus the factual premise for this claimed factor warranting is absent. 5. The third claimed factor warranting is William's limited contact with his own parents. Given the age at which William came to Australia, given his lack of contact with his natural father and given his residence with Norman and Doreen through the whole period when he moved from childhood to young manhood, from William's perspective his relationship with Norman was a substitute for a relationship with his natural father. 6. But Norman assumed such a role with so many family members that the relationship that Norman's generosity created cannot be explained as a special relationship with William. Norman and Doreen so institutionalised their assistance to nieces and nephews, siblings and future sons-in-law that the best explanation for Norman's relationship with all of them was a deeply felt belief on his part in the importance of showing leadership and taking responsibility as the Australian head of the family and in the course of that to be a provider for all family members who came under the mantle of his care. 7. The fourth claimed factor warranting is that the deceased played a prominent role in William's life: furthering his education, giving him work experience and getting him to adulthood. It was submitted that long after William had moved out of the deceased's home there continued to be a close bond between them. 8. The factual basis for this factor warranting is not made out. In my view there was certainly a bond between Norman and William but it was nothing like the bond between Norman and Robert and Elaine. William's behaviour in the years and months leading up to Norman's death are some of the best evidence of this. William's position as more closely connected with Norman than other cousins in a similar position has not been established in the plaintiff's case. For example, he was never included in the deceased's various wills and no promises of testamentary benefits were made to him. 9. The fifth claimed factor warranting was that, whilst it should be accepted that the deceased had not treated William as generously as his two adopted children, Robert, Elaine and Tina, nevertheless William was treated within the family group as a person more closely connected to him than the other cousins within the family group. This in my view has not been established. All other claimed versions of factors warranting in this case seem to be variants of these. Conclusion and Orders 1. After considering the cases presented, the Court has found that the plaintiff has not made out factors warranting an order for provision in his favour against the estate of the deceased. Although the plaintiff's lawyers have put everything that might reasonably be put on his behalf, the plaintiff's case therefore fails on that ground and I will dismiss the Summons with costs. 2. It may be that some special order for costs is required. If so, the proceedings can be listed by arrangement with my Associate at some stage in the next two weeks. 3. Therefore the Court's orders are as follows: 1. Summons dismissed. 2. Order the plaintiff to pay the defendants' costs of these proceedings. 3. That exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. 4. Grant leave to the parties to approach my Associate to fix a date for the hearing of any application for a special costs order. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 April 2016