Cong v Shen (No 3)

[2021] NSWSC 947

Supreme Court of NSW

Built by Barristers,
For Australian Law.

1. Contracts
2. › Construction
3. › Good faith
4. › Implication of terms
5. › Contracts Review Act
6. › Whether unjust in all circumstances
1. Deeds
2. › Standing to sue
3. › Whether multi-party deed poll or inter partes deed
4. › Trust of benefit of promise
1. Equity
2. › Trusts and trustees
3. › Express trusts
4. › Intention to create
5. › Resulting trusts
6. › Presumption of advancement
7. › Secret and half-secret trusts
8. › Fraud on a power
9. › Equitable fraud
1. Equity
2. › Equitable defences
3. › Unconscionable Conduct
4. › Undue influence
5. › Yerkey v Jones
6. › Catching Bargains

A deed executed contemporaneously with a will may be incorporated into the will as a statement of testamentary intention, but may simultaneously be set aside as unjust under the Contracts Review Act 1980 (NSW) where the circumstances of its execution — including the signatory's limited understanding of English, absence of independent legal advice, and the failure of the solicitor to explain the deed's effect — render it unjust in all the circumstances.
Where a deceased held property as joint tenant with a surviving spouse and failed to sever the joint tenancy during his lifetime, the accrual by survivorship constitutes a relevant property transaction taking effect on death for the purposes of notional estate designation under s 80 of the Succession Act 2006 (NSW), without the need to establish the intention requirements applicable to transactions within three years before death.
In assessing family provision for adult children of a first marriage, the court may place significant weight on the deceased's clear testamentary intentions to provide substantially for those children, particularly where the deceased had already made substantial lifetime provision for the surviving spouse and younger children through property acquisitions in the spouse's name.