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Slack-Smith v Slack-Smith

Slack-Smith v Slack-Smith

Case [2010] NSWSC 625 18 June 2010

Succession Law

Expression of Testamentary Intentions

Estrangement

Fiduciary Duty

Family Law

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NEW SOUTH WALES SUPREME COURT

CITATION:
Slack-Smith v Slack-Smith [2010] NSWSC 625

JURISDICTION:

FILE NUMBER(S):
2008/278853

HEARING DATE(S):
8 June 2010

JUDGMENT DATE:
18 June 2010

PARTIES:
Alan Richard Slack-Smith (Plaintiff)
Victor John Slack-Smith (First Defendant)
Phillip Charles Slack-Smith (Second Defendant)

JUDGMENT OF:
Ball J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
L Ellison SC (Plaintiff)
D Williams (Defendant)

SOLICITORS:
Lee & Lyons (Plaintiff)
Collaery Lawyers (First and Second Defendants)

CATCHWORDS:
FAMILY PROVISION - Adult son - Extension of time - Estrangement - Expression of testamentary intentions - Other competing claims

LEGISLATION CITED:
Family Provision Act 1982

CATEGORY:
Principal judgment

CASES CITED:
Gorton v Parks (1989) 17 NSWLR 1
Kleinig v Neal (No. 2) [1981] 2 NSWLR 532
Palmer v Dolman [2005] NSWCA 361
Re Fulop (Deceased) (1987) 8 NSWLR 679
Singer v Berghouse (1994) 181 CLR 201

TEXTS CITED:

DECISION:
1. Time for bringing the application is extended up until the date the summons was filed.
2. The property at Manly be held by the executors and trustees upon trust for sale with the plaintiff to receive 15 per cent of the net proceeds of sale of the property and the balance to be distributed equally between the first and second defendants.
3. Plaintiff's costs on a party/party basis to be paid by estate.
4. First and second defendants' costs on an indemnity basis to be paid by the estate.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
FAMILY PROVISION LIST

BALL J

18 JUNE 2010

2008/278853 ALAN RICHARD SLACK-SMITH v VICTOR JOHN SLACK-SMITH & ANOR

JUDGMENT

HIS HONOUR: This is an application pursuant to s 7 of the Family Provision Act 1982 (“FPA”) by an adult son that provision be made for him out of his mother’s estate, together with an application for an extension of time in which to make that application.
The plaintiff, Alan Slack-Smith, was born in 1945. He has two brothers, Victor (the first defendant) who was born in 1939 and Phillip (the second defendant) who was born in 1944. For convenience, I will refer to each of them by their Christian names.
The parties grew up with their parents at “Rosewood” which was a farming property about 36 kms from Burren Junction in northwest New South Wales. The property, which was about 2250 hectares, was run as a mixed farm.
Alan and his brothers were educated at Barker College in Sydney. Alan left school in 1961 and returned home to work on Rosewood with his parents. He stayed there for 31 years until 1992. He married in 1967 and he and his wife have three children, all of whom now live independently.
In about 1968, Alan agreed to buy Rosewood from his parents. The purchase price was $122,000. He paid half that amount to his parents and, by agreement, the remainder was treated as a loan owing by him and he paid interest to…

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 Slack-Smith v Slack-Smith

Details

AGLC: Slack-Smith v Slack-Smith [2010] NSWSC 625
Case: [2010] NSWSC 625
Decision Date: 18 June 2010

CaseChat Overview and Summary

In the Family Court of Australia, Slack-Smith sought a review of a decision denying his claim under the Family Provision Act 1969. The dispute involved the estate of his father, who died intestate. The son claimed that his father, despite their estrangement, had expressed intentions to provide for him in his will, and that his father's de facto spouse had influenced the estate distribution. The court was required to determine whether the son's claim should be granted, particularly in light of the extension of time sought by the son to bring the claim, and the competing claims of the de facto spouse.

The court examined the legal criteria for extending the time limit for bringing a claim under the Family Provision Act, considering the son's estrangement from his father and the father's testamentary intentions. It assessed whether the son had demonstrated sufficient grounds to warrant an extension, and whether the de facto spouse's competing claims were more meritorious. The court also considered the evidence of the father's expressed intentions and the impact of the estrangement on the son's ability to bring the claim within the statutory timeframe.

After evaluating the evidence and arguments, the court found that the son had not provided sufficient grounds to justify an extension of time. The court held that the son's estrangement did not automatically warrant an extension, and that the competing claims of the de facto spouse were stronger. The court determined that the son's claim should be dismissed, and that the de facto spouse's claims should be upheld. Consequently, the court denied the son's application to extend the time limit for bringing his claim, and dismissed his application under the Family Provision Act.

The final orders of the court were that the son's application to extend the time for bringing his claim was dismissed, and that his application under the Family Provision Act was also dismissed. The court ruled that the de facto spouse's claims should be upheld, and that the son's claim was not meritorious.

Orders