Was the Needy Nephew Successful in His Claim for a Share of his Rich Uncle’s Estate?
Under the “Family Provisions” legislation contained in the Succession Act (NSW) 2006, persons who are “eligible persons” are entitled to make a claim for greater provision from the estate of a deceased person. “Eligible persons” are a limited class. Generally, it is restricted to spouses (included former spouses), children of the deceased and people who were members of the deceased’s household and were financially dependent upon the deceased.
The case of Yee v Yee & Anor (2016) NSW SC is an interesting example of a family provisions claim. Mr Yee 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 established a number of successful businesses. As the senior member of his family in Australia, Mr Yee took his family responsibilities very seriously and over a number of years he facilitated the emigration of over a dozen members of his and his wife’s extended family to Australia. These relatives, upon arrival in Australia, were permitted to live with Mr Yee and his wife for a number of years. Mr Yee generously provided financial assistance to them and otherwise assisted them by offering them with employment in his businesses. Mr Yee made seven Wills during his lifetime and in the final Will he made provision for his adopted children, his second wife and her daughter. No provision was made by him for any of the extended family members he had helped to emigrate to Australia.
William Yee, a nephew of the deceased, made a claim upon Mr Yee’s Estate, stating in support of his claim that:
- His relationship with his Uncle was more like that of a son and his father, rather than that of a nephew and uncle. He lived with his Uncle and Aunt from the age of 9 and they cared for him for over a decade.
- He had very limited contact with his own parents during his childhood and the deceased became something of a substitute father to him.
- His Uncle provided him with financial assistance, accommodation and employment well into his adult life, so much so that it could be said that he was dependent upon his Uncle.
- When he got married his Uncle was listed on the wedding invitation, in the place of the father of the groom and his Uncle assumed that role at the wedding.
- There was a close bond between him and his Uncle throughout his life. When his Uncle was diagnosed with leukemia, he visited him and kept in touch with him by phone.
- In conclusion, he said that whilst it might be true that he, the nephew, did not always make wise financial decisions during his life, he nevertheless contended that “a just father’s moral duty was to assist the lame duck amongst his offspring” and on that basis the Court should allocate a share in his Uncle’s Estate to him.
In response to the claim, one of the Executors of the Estate, a son of the deceased, gave evidence that:
- His father and his cousin did not regard each other as father and son. The Applicant always referred to the deceased as “Uncle” and he was never regarded by the family as a member of their immediate family.
- The bond between the deceased and the Applicant was in no way as close as the bond between the deceased and his two adopted children.
- The deceased helped many relatives emigrate to Australia and because he was very generous he took responsibility for all of those he assisted. The Applicant was merely one of many recipients of his father’s generosity.
- Amongst the many comments made by the deceased about the Applicant were “He has a bad habit of losing more money than he can afford to lose”, “He spends too much money on fancy clothes”, “He gambles too much and never goes to work” and “He is a good for nothing”.
- When his father was diagnosed with Leukemia, he had asked him (his son) to convey this news to four people and the Claimant cousin was not one of these people.
The Executor also established by an analysis of the Applicant’s phone records that he had never contacted his Uncle by phone when he was ill with leukemia as he had maintained in his evidence.
Without looking at the result, what do you think the Court would have decided?
This is what the Court decided
- Whilst William Yee had lived with his Uncle for longer than most of the other relatives who had emigrated from China, this did not negate the fact that he lived there as a result of his Uncle’s generosity and not because he was a close family member.
- Whilst William Yee was financial dependent on his Uncle for a period whilst he was younger, this could not be said to apply to him during his adult life.
- The assistance rendered by Norman Lee to his nephew was symptomatic of his generous nature and his belief that as the oldest member of his family group in Australia he was expected to help his siblings and their families.
- Whilst William Yee had demonstrated need, that need was largely self-inflicted. There was no need for Norman Lee’s Estate the carry the burden of William Yee’s poor financial decisions during his life. Accordingly, the application was dismissed.
William Yee subsequently appealed the Court’s decision, Yee v Yee (2017) NSW CA 305, but his appeal was dismissed with cost.
If you have an inkling that someone might wish to make a claim against your Estate you should refer the matter to us so that we could give you the appropriate advice.
Call Paul Pritchard on 9543 1444.