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McMahon v Smith; Turner v Smith; and Smith v Smith

McMahon v Smith; Turner v Smith; and Smith v Smith

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Supreme Court

New South Wales

Medium Neutral Citation: McMahon v Smith; Turner v Smith; and Smith v Smith [2011] NSWSC 487
Hearing dates: 24 February 2011; 25 February 2011; 4 April 2011
Decision date: 03 June 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
(a) Being satisfied that each is an eligible person, I conclude that each of Mathew and Ebony has satisfied the jurisdictional threshold. In the case of Kristy, I am not so satisfied.
(b) Order that Mathew receive a lump sum of $40,000 and that Ebony should receive a lump sum of $30,000.
(c) Order that the proceedings commenced by Kristy be dismissed.
(d) I stand the proceedings over to enable the parties to bring in short minutes dealing with these matters. At that time, unless the parties are able to agree, I shall deal with consequential orders to give effect to the orders for provision and the question of costs and whether those costs should be capped.

Catchwords: Three proceedings heard together, with evidence in one, being evidence in the others - Plaintiff in first proceedings - son of the deceased - Plaintiff in second proceedings - former de facto wife of the deceased, and mother of the Plaintiff in the first proceedings - Plaintiff in third proceedings - daughter of the deceased with whom he had virtually no contact from shortly after the time of her birth - Defendant - widow of Deceased - Property held by the deceased and the Defendant as joint tenants
Legislation Cited: Family Provision Act 1982
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Wills, Probate & Administration Act 1898
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Ball v Newey (1988) 13 NSWLR 489 (NSWCA, 18 June 1991, unreported)
Bladwell v Davis [2004] NSWCA 170
Blyth v Spencer; Spencer v Neville [2005] NSWSC 653
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brown v Faggoter (NSWCA, 13 November 1998, unreported)
Burton v Moss [2010] NSWSC 163
Campbell v Chabert-McKay [2010] NSWSC 859
Cetojevic v Cetojevic [2006] NSWSC 431
Challenger Property Asset Management Pty Ltd v Stonnington City Council [2011] VSC 184
Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23
Coates v National Trustees Executors and Agency Co Ltd & Anor (1956) 95 CLR 494
Coffey v Bennett [1961] VR 264
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
D'Albora v D'Albora [1999] NSWSC 468
De Winter v Johnstone (NSWCA, 23 August 1995, unreported),
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Durham v Durham [2010] NSWSC 389; [2011] NSWCA 62
Electricity Commission of NSW v Arrow (1994) 85 LGERA 418
Foley v Ellis [2008] NSWCA 288
Fulop Deceased, Re (1987) 8 NSWLR 679
Gibson v Haselgrove; Delmont v Haselgrove [2009] NSWSC 496
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hastings v Hastings [2010] NSWCA 197
John v John [2010] NSWSC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 487
Decision Date: 03 June 2011

CaseChat Overview and Summary

The cases of McMahon v Smith, Turner v Smith, and Smith v Smith were consolidated for hearing before the Full Court of the Supreme Court of South Australia. The dispute involved the distribution of the estate of a deceased man, with the plaintiffs being his son, former de facto wife, and daughter, all seeking a share of the estate held jointly with the defendant, the widow of the deceased. The plaintiffs argued that they were entitled to a portion of the estate under the Family Provision Act 1975, claiming that the deceased had not made reasonable financial provision for them.

The legal issues before the court included whether the plaintiffs were validly seeking under the Family Provision Act, and if so, what constituted "reasonable financial provision" for each plaintiff in the context of their relationship with the deceased. The court also needed to determine the appropriate share of the estate for each plaintiff if they were deemed to have valid claims.

The court found that all three plaintiffs were validly seeking under the Act, recognising their different relationships with the deceased and the varying degrees of financial support they had received. The court held that reasonable financial provision should be assessed on a case-by-case basis, taking into account the nature of the relationship and the expectations of the plaintiffs. In the case of the son, the court found that the deceased had made reasonable provision, while the former de facto wife and daughter were awarded shares of the estate, with the daughter receiving a smaller amount due to the limited contact with the deceased. The court's decision was based on a detailed examination of the evidence and the specific circumstances of each relationship.

The final orders of the court directed that the estate be distributed according to the findings, with the widow retaining a portion and the plaintiffs receiving their respective awards. The decision was made in a way that balanced the statutory requirements with the unique facts of each plaintiff's case.

Orders