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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.
case a - The case for the nephew
case b - The case for the son
My relationship with my uncle was much closer than that of
uncle and nephew. We were more like father and son. I lived with my
uncle and aunt for a decade from the age of nine. They practically
raised me.
I had very limited contact with my own parents as I was growing
up, so the relationship I had with my uncle became a substitute for
the relationship with my natural father.
My uncle provided me with financial assistance, accommodation
and employment well into my adult life. I depended on him.
When I got married, my uncle was listed on the wedding
invitation in the place of the father of the groom and he assumed
that role at my wedding.
There was a close bond between me and my uncle throughout his
life. When he was diagnosed with leukaemia, I visited him and kept
in touch with him by phone.
I have debts which I need to attend to. It is true that I have
not always made wise financial decisions in my life, but I
nevertheless contend that "a just father's moral duty is
to assist the lame ducks amongst his offspring". The court
should allocate a share of my uncle's estate to me.
It is not true that my father and my cousin were like father
and son. My cousin called him "uncle", not
"dad". When my sister and I were growing up, we never
regarded our cousin as our sibling.
The bond between my father and my cousin was in no way as close
as the bond my father had with my sister and with me.
My father helped many relatives emigrate to Australia. Because
he was very generous, he took responsibility for all of them. My
cousin was merely one of many recipients of my father's
generosity.
My father said of my cousin that he "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".
My cousin and my father were not particularly close during the
last years and months of my father's life. When my father was
diagnosed with leukaemia the year before he died, he asked me to
convey this news to four people. My cousin was not one of
them.
While my cousin maintains that he kept in touch by phone when
my father was ill during the last months of his life, an analysis
of my cousin's phone records shows that he never rang my
father.
My father made seven wills during his life and did not provide
for my cousin in any of them. He had no intention of leaving part
of his estate to this nephew and the court should reject my
cousin's family provision application.
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