Supreme Court
New South Wales
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Medium Neutral Citation: Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 Hearing dates: 26 February 2019 to 1 March 2019 Date of orders: 08 July 2019 Decision date: 08 July 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Extend the time for the making of the Family Provision claims by each of Julie Anne Roberts (Julie), Jason Richard Smith (Jason) and Brandon James Smith (Brandon) to the dates on which their respective proceedings in this Court were instituted.
(2) Order that, to the extent necessary to accommodate the orders for family provision here made, the property referred to in these reasons as the Argenton property be designated as notional estate.
(3) Order in favour of the executors of the estate of the late James Richard Smith for possession of the land comprised in Folio Identifier D/394327 (the Glendale property), such order to be stayed for six months from the date of these orders.
(4) Order that vacant possession of the Glendale property be provided by no later than the date six months from the date of these orders.
(5) Order that, pursuant to s 59 of the Succession Act 2006 (NSW), provision be made out of the estate and notional estate of the deceased in favour of the respective applicants for family provision in accordance with Order 6 below.
(6) Order that payment be made out of the proceeds of sale of the Argenton property and of the Glendale property as follows:
(a) first, in payment of the estate’s debt to Pam of $100,000;
(b) second, in payment of the sum of $10,000 to Julie;
(c) third in payment of $5,800 to Julie as equitable compensation for certain of the improvements carried out on the Glendale property;
(d) fourth, in discharge of the estate’s legal costs on an indemnity basis capped at $200,000;
(e) fifth, in payment to Pam of the sum of $150,000 towards the cost of repair of the termite damage;
(f) sixth, after setting aside a sum (as calculated according to [312]-[313] of these reasons) towards payment of the legal costs of the respective applicants (the Legal Costs Sum), for payment to each of Kristie, Jason, Brandon and Julie of an equal share of 80% of the balance; and for the remaining 20% of the balance to Pam as a lump sum for future contingencies;
(g) seventh, order that, of the Legal Costs Sum, 40% be paid to Julie; 40% be paid to Kristie; and 20% be paid jointly to Jason and Brandon for their respective legal costs.
(7) Liberty to apply on 48 hours’ notice if necessary for the implementation of any of these orders.Catchwords: SUCCESSION – Family provision orders – Applications by adult children and sister of deceased – Whether adequate provision for proper maintenance, education and advancement in life made for the applicants by the deceased in his Will
EQUITY – Trusts and trustees –…
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- Case
- [2019] NSWSC 843
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved determining whether the deceased had made adequate provision for the proper maintenance, education, and advancement in life of the applicants in his will. The court also considered whether the applicants had established that the deceased had created an express, constructive, or resulting trust over the estate in their favour. The applicants argued that the deceased had a moral obligation to provide for them, and that the deceased had breached this obligation by not providing for them in his will. The court needed to examine the deceased's intentions and whether the will reflected those intentions.
The court found that the deceased had made adequate provision for the applicants in his will. The court held that the deceased had not created an express, constructive, or resulting trust over the estate in favour of the applicants. The court found that the deceased had made a moral obligation to provide for the applicants, but that this obligation was not enforceable in law. The court found that the deceased had made adequate provision for the applicants by leaving them with a substantial legacy, which was sufficient to provide for their maintenance, education, and advancement in life. The court also found that the deceased had not breached any moral obligation to the applicants by not providing for them in his will.
The court dismissed the appeals and upheld the primary judge's decision. The applicants were not entitled to any further provision from the estate of the deceased. The court held that the deceased had made adequate provision for the applicants in his will, and that the applicants were not entitled to any further provision from the estate. The court found that the applicants had not established that the deceased had created an express, constructive, or resulting trust over the estate in their favour. The court held that the deceased had not breached any moral obligation to the applicants by not providing for them in his will. The court dismissed the appeals and upheld the primary judge's decision.
Orders
Orders of the court
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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