【Classic Cases】WXXg v Estate of WXXg; LX by his tutor FXXg v LX [2021] NSWSC 7XX

JUDGMENT ­– EX TEMPORE (REVISED)

HER HONOUR: These reasons deal with the settlement of two sets of proceedings that concern the intestate estate of the late YXXing WXXg (the deceased).

Before turning to the issues raised by the proposed settlements, it is necessary to set out some factual background. At this point, I should record that the circumstances of the deceased’s death have caused considerable grief to those involved in these proceedings. The Court extends its sympathy to all of the parties.

Background

The deceased died on 24 October 2018, aged 36, as a result of injuries sustained in a motor vehicle accident in a car driven by her husband, WeXXin LX (husband).

The deceased is survived by her husband, whom she married in 2010, and their son, who is now seven years old (son). She is also survived by her parents, YonXXin WXXg and ZhaXXen JiXXg (grandparents), who migrated to Australia from China. The deceased is the only child of the grandparents.

On or about 29 August 2019, the husband was charged with dangerous driving occasioning death of the deceased, dangerous driving occasioning grievous bodily harm to the passenger of the other vehicle involved in the accident, negligent driving occasioning death, and negligent driving occasioning grievous bodily harm. Each charge was an offence under the Crimes Act 1900 (NSW).

On or about 8 November 2019, the husband entered a plea of guilty to the first two charges.

On 16 June 2020, the husband was sentenced to an aggregate term of imprisonment of two years and two months expiring on 15 August 2022 which is to be served by way of intensive correction in the community in accordance with the Crimes (Administration of Sentence) Act 1999 (NSW). The negligent driving charges were dismissed.

The deceased died without a will. The default position is that the husband is entitled to the whole of the deceased’s intestate estate under s 112 of the Succession Act 2006 (NSW). However, in the circumstances of this case, the forfeiture rule qualifies the husband’s entitlement.

The forfeiture rule precludes a person who has unlawfully killed another person from acquiring a benefit in consequence of the killing: Forfeiture Act 1993 (NSW), s 3; Re Settree Estates; Robinson v Settree (2018) 98 NSWLR 910; [2018] NSWSC 1413 (Re Settree Estates) at [48]–[59]. The Court may modify the forfeiture rule in certain circumstance: Forfeiture Act, s 5.

Probate proceeding

The first proceeding, which I refer to as the Probate proceeding, was commenced on 24 October 2019 against the husband by the son in the name of his tutor, YiXXn FXXg.

In the Probate proceeding, the son sought a declaration that the forfeiture rule apply and that he be entitled to the whole of the intestate estate of the deceased. The son also sought orders for his tutor to be appointed as his guardian and for the administration of the deceased’s estate to be granted to the guardian until the son attained the age of 18 years. In the alternative, the son sought an order for provision out of the deceased’s estate pursuant to s 59 of the Succession Act.

The husband admitted that the forfeiture rule prima facie applied but, by way of cross-claim, sought an order to wholly modify the effect of the forfeiture rule to enable him to be entitled to the deceased’s estate and an order that he be granted letters of administration of the deceased’s intestate estate.

In his defence to the cross-claim, the son did not admit that the forfeiture rule should be modified or that the husband was entitled to the whole of the deceased’s estate.

FPA proceeding

The second proceeding, which I refer to as the FPA proceeding, was commenced by the grandparents on 23 October 2019.

In addition to an order for provision under s 59 of the Succession Act, in the FPA proceeding, the grandparents seek money judgments against the deceased’s estate in the sum of $128,000 for monies alleged to have been loaned to the deceased and $86,000 for the cost of a cemetery plot in Shanghai as a funeral and testamentary expense of the deceased. They also seek declaratory relief concerning the ownership of an Audi motor vehicle that is registered in the name of the deceased.

The defendants to the FPA proceeding are the deceased’s estate as the first defendant, the husband as the second defendant, and the son in the name of his tutor as the third defendant.

The deceased’s estate is not a legal entity and is not an appropriate defendant. At a pre-trial directions hearing, the parties had indicated that an order would be sought at the start of the hearing for the appointment of the husband or some other party as an authorised representative of the deceased’s estate pursuant to r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). As a consequence of the orders I will make in the Probate and FPA proceedings, it is no longer necessary to make such an order under Part 7 of the UCPR; the husband is to be granted letters of administration of the deceased’s estate.

Settlement of the proceedings

Late last year, the parties to the Probate proceeding informed the Court that they had reached a settlement and proposed consent orders that disposed of the proceeding for the Court’s approval. The consent orders provided, amongst other things, for orders modifying the forfeiture rule such that the husband would be entitled to the whole of the deceased’s estate and be granted letters of administration of the intestate estate.

The grandparents objected to the proposed settlement.

In those circumstances, the Probate proceeding and the proposed settlement were stood over to be heard concurrently with the FPA proceeding. Both sets of proceedings were listed before me for hearing today with an estimate of three days.

At the start of the hearing, the parties indicated that they wanted some time for discussions. After a short adjournment, I was informed that they had reached an agreement and was provided with draft consent orders in both the Probate and the FPA proceedings which were signed by the legal representatives of the parties and the parties themselves. I was also informed by Senior Counsel for the grandparents that they had withdrawn their objection to the settlement of the Probate proceeding.

The Court’s approval of the proposed consent orders is required because:

(a) they involve a settlement which concerns a minor: Civil Procedure Act 2005 (NSW), s 76;

(b) the Court must be satisfied of certain matters when making an order that modifies the forfeiture rule; and

(c) leave may be necessary under the Forfeiture Act and the Felons (Civil Proceedings) Act 1981 (NSW).

In support of the settlement in the Probate proceeding, the husband read three of his own affidavits, one dated 3 July 2020 and two dated 10 December 2020, and two affidavits of  YiXXn FXXg, dated 15 November 2019 and 13 December 2020.

Should a forfeiture modification order be made?

In the case of an unlawful killing that does not involve murder, the Court has power to make an order modifying the effect of the forfeiture rule if it is satisfied that justice requires such modification, which order may be in such terms and subject to such conditions as the Court thinks fit: Forfeiture Act, ss 5 and 6.

As the Court must be satisfied that justice requires the rule to be modified, jurisdiction cannot be exercised simply on the basis of any agreement between persons affected or potentially affected by such an order: Re Settree Estates at [46].

In determining what justice requires, s 5(3) of the Forfeiture Act requires the Court to have regard to the following matters:

(a) the conduct of the offender, being their conduct that has some bearing on the unlawful killing of the deceased: s 5(3)(a); Straede v Eastwood [2003] NSWSC 280 at [33]–[34];

(b) the conduct of the deceased person: s 5(3)(b);

(c) the effect of the application of the rule on the offender or any other person: s 5(3)(c); and

(d) such other matters as appears to the Court to be material: s 5(3)(d).

Having carefully considered the evidence and the submissions of the parties, I am satisfied that justice requires the forfeiture rule to be modified in this case so as to entitle the husband to the whole of the deceased’s estate, including the benefit he may receive with respect to the deceased’s superannuation and life insurance policy: Order 7 of the consent orders.

The husband’s conduct, which is the first criteria under s 5(3)(a), involved serious offences with criminal consequences. The severity of his conduct was reflected in the comments of the sentencing judge who referred to the crime as not being at the lower end of seriousness. That said, the motor vehicle collision which led to the deceased’s death was a tragic accident, the cause of which could not be ascertained. In the words of the son’s counsel, it seems impossible to ascribe anything more to the collision than misfortune, although I recognise the devastating effect the accident has had on the deceased’s family.

The evidence indicates that the husband has shown remorse and there is no suggestion whatsoever that the deceased’s death was premeditated or that the husband had sought to profit from it: see Straede v Eastwood [2003] NSWSC 280 at [45].

As to the conduct of the deceased, she played no part in the collision. There is nothing before the Court to indicate the deceased’s wishes, although she would presumably be concerned about the ongoing welfare of her son and her husband.

The son is a young child who lives with, and is largely dependent on, the husband. The evidence indicates that the husband has few financial resources and is currently unemployed. He is the son’s primary caregiver and is responsible for his education costs and most of his other expenses. The husband has demonstrated that he has real financial need for himself and his son.

The deceased’s estate is modest. It comprises net equity in real property of just under $300,000. There is also evidence that the husband has made substantial financial contributions towards the purchase of that real property of around $198,000 to which he may have some claim.

In my view, it is also relevant that agreement has been reached in relation to the deceased’s superannuation, which will result in the son receiving 50% of the funds. The husband has agreed to give the son 10% of his share, with the remaining 50% to be split equally between the husband and the deceased’s mother. The son will, therefore, have a fund available to him for his future.

The grandparents are plainly persons who were affected by the husband’s conduct. But, as previously noted, they no longer object to the orders being sought. The son’s tutor also consents to the forfeiture modification order.

Should the other orders sought in the Probate proceeding be made?

The consent orders seek leave for the husband to file his cross-claim out of time under s 7(2) of the Forfeiture Act. Section 7(1) of the Forfeiture Act provides that an application for a forfeiture modification order must be made:

(a) if the forfeiture rule operates immediately on the death of a deceased person to prevent the offender from obtaining the benefit concerned, within 12 months from the date of the death of the deceased person; or

(b) if the forfeiture rule operates only from some time after the death of a deceased person to prevent the offender from obtaining the benefit concerned, within 12 months from the date on which the forfeiture rule so operates.

As Senior Counsel for the husband submitted, there is a question in this case as to whether the forfeiture rule operates immediately on the death of the deceased, being on 24 October 2018, or only upon the date on which the husband pleaded guilty, being on or around 8 November 2019. The husband’s cross-claim was filed more than 12 months after the death of the deceased, being some two months out of time, but only some five weeks after the plea of guilty.

To the extent that leave under s 7(2) of the Forfeiture Act is required for the husband to bring his cross-claim seeking modification of the forfeiture rule, I am satisfied that it is just in all of the circumstances of this case to grant such leave. Doing so will enable the forfeiture modification order to be made and resolve the doubts about the husband’s position: Permanent Trustee Company Ltd v Gillett [2004] NSWSC 278 at [47].

I am also satisfied that it is appropriate to make an order granting leave to the husband to institute his cross-claim under s 4 of the Felons (Civil Proceedings) Act. The proceedings are not an abuse of process and there are prima facie grounds for the claims he has made. Although the husband has not served his term in a correctional facility, he was sentenced to a term of imprisonment. While there may be some question as to the application of the Felons (Civil Proceedings) Act in this case, I accept the submission of Senior Counsel for the husband that it is not inappropriate to make an order granting leave, as proposed in the consent orders.

The consent orders also provide for the appointment of the husband as the administrator of the deceased’s estate. I see no reason not to make such an order in circumstances where the forfeiture modification orders will be made, there is now no objection to his appointment by the grandparents, and the son, by his tutor, does not oppose the husband being granted letters of administration.

Finally, I am also satisfied that the settlement of the Probate proceeding, as embodied in the consent orders, are to the son’s advantage and should be approved pursuant to s 76 of the Civil Procedure Act. In addition to the matters to which reference has already been made, I have, in coming to that view, taken into account that the settlement will avoid the cost and time associated with a contested hearing in both the Probate and the FPA proceedings and that the son, by his tutor, has also had the benefit of legal advice from experienced counsel and solicitors.

Should the orders sought in the FPA proceeding be made?

The consent orders proposed by the parties to resolve the FPA proceeding provide for a declaration to be made that the father of the deceased is the owner of the Audi motor vehicle the subject of the grandparents’ claim.

Before making a declaration, the Court must be satisfied that there is both an evidentiary basis for the declaration to be made and utility in making it: HOOSH (Haberfield out of school hours) v State of New South Wales [2017] NSWSC 379 at [7]. I am satisfied of both these matters.

The husband admits, and there is evidence that demonstrates, that the deceased’s father paid for the Audi motor vehicle. There is also evidence read on this application, which was not challenged, that the deceased’s father has used the motor vehicle since it was purchased and it was not registered in his name for reasons unrelated to its ownership. I accept that, in practical terms as between the husband and the grandparents, the declaration has utility as it determines the dispute about ownership and will provide some assurance to the grandfather as to his rights to that property in the future.

The consent orders also provide for leave to be granted to the grandparents to amend in order to reflect that the husband will be the first defendant in his capacity as the administrator of the deceased’s estate. Granting that leave will deal with the issue of the deceased's estate not being the proper defendant.

For these reasons, I make the following orders:

In proceeding 2019/33XXX7:

By consent, the Court:

(1) Notes the associated proceedings 2019/003XXX48.

(2) Notes the proceedings are brought by a minor, he being the only child of the defendant and YXXing WXXg (the deceased), born on 20 May 2014.

(3) Approves pursuant to Civil Procedure Act, s.76 the settlement herein and makes the orders and notations accordingly.

(4) Notes it has taken into account the circumstances of the plaintiff, who remains wholly dependent on the defendant, his father.

(5) Grants leave pursuant to Felons (Civil Proceedings) Act 1981 to the cross-claimant to institute the Cross-Claim herein and to maintain his Defence and the Cross-Claim.

(6) Gives leave pursuant to Forfeiture Act 1995, s.7(2) to the cross-claimant to file the Cross-Claim herein.

(7) Order pursuant to the Forfeiture Act 1995, s.5 the defendant is entitled to the whole of the deceased’s estate including such benefit he may receive in respect of the deceased’s Superannuation and Life Insurance Policy with Australian Super (Member No 700326452).

(8) Notes the agreement of the parties in respect of the deceased’s entitlement to a superannuation balance and insured benefit held by Australian Super and for which the Trustees of Australian Super (Member No 7003XX452) have made a determination that the plaintiff receive 40%, the defendant receive 35%, and the deceased’s mother ZhaXXen JiXXg receive 25% of the deceased’s entitlement, the defendant will pay to the plaintiff an amount equal to 10% of the entitlement to the intent that the plaintiff will become entitled to 50% and the defendant entitled to 25% of the deceased’s entitlement in Australian Super.

(9) Notes the agreement of the parties, the defendant will not object to the payment of the plaintiff’s entitlement to the NSW Trustee and Guardian to be held in trust during the plaintiff’s minority.

(10) Notes the defendant will not object to the NSW Trustee & Guardian paying out of the plaintiff’s entitlement, the plaintiff’s costs and disbursements in these proceedings on an indemnity basis.

(11) No order as to the costs of the defendant to the intent he bear his own costs of the proceedings.

On the application of the defendant to which the plaintiff neither consents nor opposes:

(12) Letters of administration of the intestate estate of the late Yiquing Wang who died on 24 October 2018, be granted to the defendant, her spouse.

(13) Proceedings referred to the Senior Deputy Registrar in Probate to complete the grant in accordance with the rules.

The Court notes:

(14) Consequent upon any grant of administration being made to the defendant, the defendant is entitled to the whole of the intestate estate of the deceased pursuant to Succession Act 2006, s.112.

The Court orders:

(15) Statement of Claim and Cross-Claim otherwise dismissed.

In proceeding 2019/33XX48:

By consent but without admissions:

(1) Leave is granted to the plaintiffs to amend the identity of the first defendant’s name to WeXXin LX as first defendant in his capacity as the administrator of the Estate of the Late YXXing WXXg and the Court dispenses with the need to file and serve any amended statement of claim.

(2) The Court declares that the first plaintiff is the owner of the Audi Q7 motor vehicle registration number CWXXXM.

(3) Vacate all previous costs orders.

(4) Order that there be no order as to costs to the intent that each party bear his or her own costs of the proceedings.

(5) Order that the proceedings otherwise be dismissed.

(6) The Court notes the agreement between the plaintiffs on the one hand and WeXXin LX in his own right and as administrator of the Estate of the late YXXing WXXg as follows:

(a) the plaintiffs will withdraw any appeal or review of the decision of AustralianSuper dated 31 January 2020 (it being reproduced at Page 318 of Volume C of the Court Book);

(b) the parties will cooperate so as to ensure that (subject to the orders made in proceeding 2019/33XXX7) the benefits to be distributed by AustralianSuper are received in accordance with the said letter of 31 January 2020.

(c) The said parties shall release each other in respect of all claims which are the subject matter of these proceedings or which arise from any financial dealings between:

(i) themselves; or

(ii) any of them and the late YXXing WXXg,

such release to be a complete defence and bar to any such claim.

**********