De Blac v Lo

Introduction 1This is the determination of separate questions in a family provision case. 2The plaintiff, Mr De Blac, seeks an order that provision be made for him out of the estate of the late Ms Siu Ying Lo ("the Deceased") for his maintenance and advancement in life pursuant to s 59 of the Succession Act 2006 ("the Act"). 3The defendant, Ms Lo, is a sister of the Deceased. The Deceased named Ms Lo as her executrix and sole beneficiary in her will. 4When she died, the Deceased was the registered proprietor of a property at South Granville ("the Property"), the current value of which is estimated by Ms Lo to be between $550,000 and $580,000 and by Mr De Blac between $580,000 and $630,000. The Property is unencumbered. 5Apart from the Property, the value of the Deceased's estate is approximately $23,637.56, comprising cash on deposit and some jewellery.

The separate questions 6On 29 November 2013 Pembroke J made an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005, that the following question be heard and decided separately from (and implicitly prior to) any other questions in the proceedings: "Does the [Property] form part of the estate of the Deceased?" 7The Property is registered in the Deceased's name. Thus, the legal estate in the Property forms a part of Deceased's estate. The real questions before me are whether, as Ms Lo contends, in the events that have happened, the beneficial interest to the Property is vested in her and forms no part of the Deceased's estate, or alternatively whether the Deceased, and thus the estate, is estopped from denying this. 8Mr De Blac "does not admit" that this is so and contends (in his Second Further Points of Claim) that: "If there was a contract to leave property by Will, which is not admitted, then the [Property] forms part of the actual and/or notional estate of the deceased". 9I pointed out in argument that if: (1)Mr De Blac were unsuccessful on the separate question specified in Pembroke J's order; and (2)I concluded that the beneficial interest in the Property has vested in Ms Lo (or, as Ms Lo contends in the alternative, that the Deceased, and thus Mr De Blac are estopped from denying same); and (3)Mr De Blac wished to contend that such beneficial interest nonetheless forms part of the Deceased's notional estate; the result would be that the answer to the separate question would be not dispositive of the proceedings. 10In the hope that such a result could be avoided, it was agreed that I should answer further questions relevant to the notional estate issue. It was also agreed that the orders made by Pembroke J should be varied. 11Thus, on the second day of the hearing, the following orders were made: (1)The separate question posed by Pembroke J on 29 November 2013 be varied to read: "Does the beneficial title in the [Property] form part of the estate of the deceased?" (2)Pursuant to r 28.2 of the UCPR, and in addition to the question referred to in the first order, the following questions be heard and decided separately from any other questions in the proceedings: (a) "Whether there was a 'relevant property transaction' within the meaning of s 75 and s 76 of the Succession Act 2006 (NSW) on the basis that 'full valuable consideration' was not given to the deceased"; (b) Whether any 'relevant property transaction' satisfies the requirements of s 80(2) of the Succession Act 2006 (NSW) such as to enliven the Court's power to make a notional estate order"; (c) "Whether any 'relevant property transaction' or the holding of property resulting from such a transaction answers the description of one of the matters enumerated in s 83(1) of the Succession Act 2006 (NSW)."