In what circumstances can an estate can defeat the rules of survivorship that ordinarily transfer full ownership of joint property to the surviving joint owner in the event of the death of the other?

The Supreme Court of NSW was recently petitioned by a beneficiary of an estate to achieve exactly that result.

iStock 147942204Sijia Guo brought a claim for provision out of the estate of her late mother Wei Hong who disappeared in April 2001 never to be seen again. Under intestacy rules her entire estate passed to her spouse, leaving nothing for her adult daughter.

She had been born in China in 1995 to Wei Hong and her former husband Jin Hua Guo. Her parents divorced in 1999, with Wei Hong moving to Australia to rekindle a former relationship with Yong Wei whom she eventually married in March 2000.

In October 2000, Yong signed up the $470,000 buy of a home at Carlingford in Sydney’s north-west in joint names with Wei Hong and paid a 10% deposit. Wei Hong did not sign the contract – she was overseas – but advanced the whole of the balance purchase price from funds she had transferred from China.

She disappeared just after settlement of the purchase, after being dropped by Yong at a Carlingford bus stop to get to Sydney airport to take a flight to see Sijia who had stayed in China with her grandparents since her mother’s departure to Australia.

It wasn’t until 2012 that the NSW State Coroner declared that Wei Hong Guo couldn’t be found dead or alive, and 2021 that the court declared that she was no longer alive thereby allowing Sijia’s provision claim to proceed.

Notwithstanding registration of the transmission of the property into Yong’s name had occurred long ago, Sijia sought an order that the deceased’s interest in the home be brought back into the estate for the purposes of that claim.

If Sijia was successful, the entire property and rent accrued would be brought back into Wei Hong’s estate. Otherwise, only half the Carlingford property and accrued rents would be regarded as part of the deceased’s notional estate. As the value of the Carlingford property was $1.7M and accrued rents were $330,000, the difference in outcomes was significant.

A resulting trust – Sijia contended – existed over her mother’s interest in the home despite the joint tenancy by reason of the couple’s intentions.

The trust arose – so her argument ran – because her mother had no intention to hold the property as joint tenants and had contributed all of the purchase price.

The evidence submitted by both parties took two forms: financial evidence predominantly from bank statements and property documents in support of the contributions made towards the purchase and by whom, and secondly correspondence, documents and recollections in relation to the intentions of the purchasers.

Justice Francois Kunc noted that such evidence was sparse due to the time that had elapsed, and that Wei Hong was no longer available to give evidence.

Despite the passage of time, gaps in memories and documentary evidence, his honour was able to conclude that $335,000 had been contributed by Wei Hong to the Carlingford property purchase but he was unable to ascertain who had provided the balance.

Yong Wei was not a reliable witness, in his honour’s view. He rejected Yong’s claims that the deceased had contributed nothing.

Sijia submitted letters from her mother to family members at the time that spoke of the purchase where she spoke of “my new home” that “I bought”, arguing that this showed that her mother’s intention was that the property was to be “hers”.

The same correspondence however also showed that Wei Hong spoke glowingly of her relationship with Yong, perhaps indicating the property was being purchased as a benefit to of their marriage, regardless of the contributions made by either of them.

Ultimately, his honour concluded Sijia had not proved, on the balance of probabilities, the purchase was other than as joint tenants. Thus no resulting trust had arisen, he ruled.

The court rejected Yong’s additional contention that Sijia’s further provision claim against what remained in the estate should be barred by reason of delay.

Sijia’s youth when her mother disappeared, her location in China as she grew up, the duration of the police investigation and coronial enquiry, all combined to provide a reasonable explanation for delay such that it would be unjust – in his view – not to allow the proceedings to be brought, regardless of the difficulties with evidence and memories that occurred.

This case highlights the importance of intention when considering whether a property recorded as held as joint tenants should in fact be regarded otherwise, and also the barriers to claiming otherwise especially when one of the joint owners has died.

Guo v Gao (No 2) [2023] NSWSC 231 Kunc J, 17 March 2023 Read case