Rada v Smith - [2024] NSWSC 273

Supreme Court

New South Wales

Medium Neutral Citation: Rada v Smith [2024] NSWSC 273
Hearing dates: 13-14 March 2024
Date of orders: 14 March 2024
Decision date: 14 March 2024
Jurisdiction: Equity
Before: Kunc J
Decision:
Provision ordered for the plaintiff in that amount which is the greater of $300,000 or 60% of the residue

Catchwords:
SUCCESSION — Family provision — Claim by adult child — Plaintiff lived overseas with her mother since the age of nearly four — “Estrangement” not a useful term

Legislation Cited:
Succession Act 2006 (NSW)

Category: Principal judgment
Parties: Rebecca Kelly Rada (Plaintiff)
Raymond Paul Smith (First Defendant)
Evelyn Nevenka Smith (Second Defendant)
Representation:
Counsel:
K Tang (Plaintiff)
MM Pringle (Defendants)
Solicitors:
G&A Legal (Plaintiff)
TB Law (Defendants)

File Number(s): 2023/00214811

EX TEMPORE JUDGMENT (REVISED)

Summary

In the legal folklore which surrounded will making in Victorian England, the archetype of the spiteful father was one who disinherited his only child and left everything to the Battersea Dogs Home. That, almost literally, is what the plaintiff says her late father has done to her, albeit in Australia. She seeks a family provision order from his estate under Part 3.2 of the Succession Act 2006 (NSW) (the Act).
Without disrespect, I shall refer to the parties and others by their given names. Amounts are in Australian dollars unless otherwise specified, the parties having accepted that for the purposes of these proceedings CAD$1 is equivalent to AUD$1.12.
The plaintiff (Rebecca) is the only child of the late Igor Rada and his former wife Carole. In June 1982, when Rebecca was not quite four years old, Carole left Igor and returned to her native Canada with Rebecca. Carole divorced Igor and he never remarried.
Rebecca (for whom Mr K Tang of Counsel appeared) has made her life in Canada. Since moving there in 1982 as a young child, she has only had very limited contact with her father. Rebecca blames her father for this.
Igor died in July 2022 at the age of 75. He made his last will on 30 March 2022 and included with it a letter explaining why he was leaving nothing to Rebecca, who he described as his "long-estranged" daughter. His estate comprises his former home and cash of approximately $285,000.
By his will, Igor left specific legacies totalling $240,000 and his car and personal effects to four friends, most of this being to the defendant executors (who were represented by Mrs M Pringle of Counsel) and who had been his very caring neighbours. None of the specific beneficiaries put their circumstances in issue.
Igor left the residue of his estate to Guide Dogs NSW/ACT, a charity with which Igor had no connection during his life. While the precise value of the residue will depend on the price to be achieved for Igor's home, the parties conducted the hearing on the basis that after payment of the specific legacies, the estate's proper expenses and the parties' legal expenses, the residue was…

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.

Continue reading Rada v Smith

Details

AGLC: Rada v Smith [2024] NSWSC 273
Case: [2024] NSWSC 273
Decision Date: 14 March 2024

CaseChat Overview and Summary

Rada v Smith was a case involving a claim for family provision under the Succession Act 2006 (NSW). The plaintiff, Rada, sought to challenge the validity of the will of her deceased mother, Smith, on the basis that it did not make adequate provision for her. Rada had lived overseas with her mother since the age of nearly four and had minimal contact with her father and siblings. The dispute centred on whether the estrangement between Rada and her family justified a departure from the statutory presumption that the will maker's intention was accurately reflected in the will. The case was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the concept of "estrangement" could be used as a basis for setting aside a will on family provision grounds. The court considered whether the estrangement between Rada and her family warranted a departure from the statutory presumption that the deceased had made provision for her children according to their needs and the extent of their relationship with the deceased. The court also examined whether the estrangement had a significant impact on Rada's ability to claim under the Act.

The court held that the term "estrangement" was not a useful concept in this context, as it did not adequately capture the complex dynamics of family relationships. Instead, the court focused on the actual relationship between Rada and her family at the time of her mother's death. The court found that there was no evidence of a close or meaningful relationship between Rada and her family, and that her estrangement was a result of her mother's decisions rather than any action on her part. The court concluded that the will did not make adequate provision for Rada and ordered that she receive a portion of her mother's estate. The court also noted that the term "estrangement" was not a useful concept in this context and that the focus should be on the actual relationship between the parties at the time of the deceased's death.

Orders