21: Ye v Fung; Ye v Fung [2006] NSWSC 243 | April 7, 2006

Court or Tribunal: Supreme Court of NSW
Catchwords: De Facto Relationship, De Facto Relationships, Domestic Partner Declaration, Domestic relationship, Estate Planning, Failure of testatrix to make provision, Family Provision, Intestate, Substantial Relationship, Succession, Succession, Wills
Judges:  Gzell J


Background: This case considered the issue of family provisions and whether or not a young student who was living in a domestic relationship with an elderly woman was entitled to claim against the estate. Michael Ye, the plaintiff, came to Australia from China to study. Frances Lan Fong Fung (the deceased) was separated (but not divorced) from her husband, and invited Mr Ye to move into her unit where he lived in a non-sexual relationship with her. She was 37 years his senior. Frances Lan Fong Fung died on 21 June 2001. In her Will, Frances Lan Fong Fung made no provision for Mr Ye. Mr Ye made a claim against the estate, claiming that he was in a non-sexual de facto relationship with the deceased. 
 
  [Legal Issue]It was submitted that de facto is to be contrasted with de jure and the relationship determined by reference to the facts rather than a relationship between parties recognised at law. But that approach fails to give due regard to the requirement that the individuals in question live together as a couple. It was submitted that the word “couple” was one of wide import and required only that there be two unmarried adults. But the definition specifically requires two adult persons who are not married or related by family. To construe the word “couple” in that general sense, adds nothing further to the definition and renders the Property (Relationships) Act 1984, s 4(1)(a) otiose. It was submitted that the difference in age of 37 years was not, of itself, significant. The parties    [Court Orders]The Court found that Mr Ye was not the de facto spouse of the deceased within the meaning of the Wills, Probate and Administration Act 1898, s 32G. As such, the plaintiff, Mr Ye, could not claim any relief against her estate on this basis. However, in separate but related proceedings, the plaintiff also claimed to be in a domestic relationship to the deceased, having considered her to be his "honorary auntie". These related proceedings were held subsequently to this hearing, and would be      


[  ] Download Decision