The Facts
Man emigrates to Australia from Hong Kong and sets up successful businesses
A man emigrated to Australia from Hong Kong in 1941, when he was in his late teens.
He established himself in Sydney, married, adopted two children and, due to his hardworking nature and business acumen, went on to establish a number of successful businesses.
Man helps numerous relatives emigrate to Australia
As the senior member of the family in Australia, the man took his family responsibilities very seriously. Over the course of many years, he arranged for over a dozen members of his extended family and his wife’s extended family to emigrate to Australia.
These relatives were provided with a landing point and a safe haven in Australia. Several of them lived with the man and his wife for a number of years.
The man generously provided financial assistance to these relatives and otherwise helped them by employing them within his businesses.
Seven wills made during the course of a lifetime
The man had made seven wills in his life. In the final will he made provision for his two adopted children, his second wife and her daughter.
No provision was made in any of the man’s wills for any of the extended family members whom he had helped to emigrate to Australia.
Nephew makes family provision claim following man’s death
When the man died in 2013 at the age of 89, one of these extended family members, a nephew, sought to challenge the will and made an application to the Supreme Court of NSW, seeking orders that provision also be made for him under the will.
This application was opposed by the man’s son and brother, who were the executors of the estate.
In NSW, the law allows a person to make a family provision application if they are an “eligible person”, if there are factors which warrant the making of the application and if it can be shown that adequate provision for the person has not been made in the will.
Both sides agreed that the nephew was an “eligible person” and that no provision had been made for him in the will, so it was for the court to determine whether there were factors warranting an order for provision being made in favour of the nephew.
Expert commentary on the court's decision
Supreme Court finds in favour of executors of estate
In the case Yee v Yee & Anor [2016] NSWSC 360, the court found in favour of the executors of the estate, Robert Yee and Phillip Yee, who were the son and brother of the deceased, Norman Yee.
In doing so, the court rejected the family provision application of William Yee, who was the nephew of the deceased and Robert’s first cousin.
Established pattern of assistance to members of extended family
The court found that William Yee had not had a relationship with his uncle Norman of the kind that William described. The court found that while William had lived with his uncle Norman for a significant period and had been supported by him, both while growing up and into his adult life, it was not because Norman considered William to be like a son.
On the contrary, Norman Yee, as the senior member of the family in Australia, was in the practice of regularly helping relatives from China to migrate and live in Australia. As part of that process, he allowed several of those relatives to live with him, some for a number of years, until they were in a position to move out and live independently.
Court rejects assertions of father-and-son relationship
While it was conceded that William lived with his uncle for longer than most of the other relatives from China, this did not negate the fact that he was living with him as a member of his extended family, not as his son.
The court rejected William’s assertion that he had had a father-son relationship with his uncle. The court found that while William was financially dependent on his uncle to a large extent when he was younger, this could not be said with respect to his adult life.
The assistance Norman Yee provided to William was characterised as symptomatic of his generous nature and his belief that as the eldest member of his family group in Australia, he was expected to help his siblings and their families.
Demonstrated need insufficient to warrant allocation of share of estate
The court found that while William Yee had demonstrated need, that need was largely self-inflicted. Given the circumstances of William Yee’s relationship with his uncle, there were no grounds for Norman Yee’s estate to carry the burden of William’s poor financial decisions.
William Yee later appealed the court’s decision, in Yee v Yee [2017] NSWCA 305. The appeal was dismissed with costs.
For more information about family provision claims, please see Family provision claims in NSW – spare us the details and curb your expectations.