Australia, July 30 -- New South Wales Land and Environment Court issued text of the following judgement on June 30:

1. These proceedings concern the estate of the late Elvina Mei Yi Wong, who died at the age of 59 on 5 May 2021. The plaintiff is Mr Hasso Nibbe, with whom the deceased was in a close relationship for about 20 years prior to her death. The defendant is the deceased's sister, Ms Christine Mei Lee Wong, who is the executor of the deceased's estate.

2. The plaintiff seeks an order for further provision pursuant to s 59 of the Succession Act 2006 (NSW). There are several issues in dispute, at least three of which may be described as threshold issues.

3. The first concerns an extension of time. The proceedings were commenced on 13 March 2024, almost two years after the expiry of the limitation period for proceedings under Chapter 3 of the Succession Act. As such, the plaintiff must demonstrate sufficient cause for the Court to 'otherwise order' to permit the proceedings to be commenced out of time pursuant to s 58 of the Succession Act. The defendant does not consent to the application being brought out of time.

4. The second concerns the plaintiff's eligibility to bring a claim under Chapter 3 of the Succession Act at all. Although they were undoubtedly a couple who shared a close relationship for many years, the plaintiff and deceased were not married and never lived together in any colloquial understanding of that expression. They owned and maintained separate houses and they were entirely independent of one another financially. The plaintiff contends that he and the deceased were living in a de facto relationship within the meaning of s 57(1)(b) of the Succession Act at the time of her death. If the plaintiff does not succeed on this issue, the summons must be dismissed.

5. On the assumption that the plaintiff is successful on these first two issues, it will be necessary to determine whether any order for further provision should be made and, if so, in what amount. However, at that point the third bright-line issue emerges. Because the estate was fully administered during the 2021 calendar year in circumstances where the defendant had given the prescribed notice and where she had no notice of the plaintiff's intention to bring a claim, the plaintiff seeks an order pursuant to s 79 of the Succession Act designating property that has been distributed as notional estate. However, s 90 provides that the Court must not make such an order in a case such as this except where 'other special circumstances' are demonstrated. Although this issue arises later in the analysis and so may not quite so naturally be described as a threshold issue, it remains the fact that the plaintiff cannot succeed unless he can demonstrate that there are other special circumstances that warrant the making of a notional estate order in relation to property of the estate that has already been dealt with under the will.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197bdd4a4f72fb47031d2123)

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