Smilek v Public Trustee

Case [2008] NSWCA 190

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Smilek v Public Trustee  [2008] NSWCA 190

FILE NUMBER(S):
40772/07

HEARING DATE(S):
28/7/08

JUDGMENT DATE:
14 August 2008

PARTIES:
John Smilek (1st Appellant)
Peter Smilek (2nd Appellant)
Public Trustee 58 389 343 989 (Respondent)

JUDGMENT OF:
McColl JA Bell JA Handley AJA   

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
4990/06

LOWER COURT JUDICIAL OFFICER:
Windeyer J

LOWER COURT DATE OF DECISION:
22/10/07

COUNSEL:
Mr L J Ellison SC (Appellants)
Mr D Flaherty (Respondent)

SOLICITORS:
MCG Lawyers (Appellants)
The Public Trustee (Respondent)

CATCHWORDS:
FAMILY PROVISION – advancement in life – adult stepsons – estate passing to the Crown bona vacantia

LEGISLATION CITED:
Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Collins v McGain [2003] NSWCA 190
House v The King [1936] HCA 40; 55 CLR 499
Hunter v Hunter (1987) 8 NSWLR 573
In the Estate of Puckridge, Deceased (1978) 20 SASR 72
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Singer v Berghouse [1994] HCA 40; 181 CLR 201

TEXTS CITED:

DECISION:
1.  Appeal allowed.
2.  Set aside the orders made on 22 October 2007.
3.  In lieu thereof, each of the appellants is to receive a one half share of the residuary estate of the deceased.
4. The parties' costs of the appeal and the trial are to be paid out of the estate of the deceased, in the executor's case on an indemnity basis.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40772/07
SC 4990/06

McCOLL JA
BELL JA
HANDLEY AJA

Thursday 14 August 2008

John Smilek v The Public Trustee

Judgment

  1. THE COURT: This is an appeal against Windeyer J’s dismissal of a claim brought by the appellants, who are the adult stepsons of Tadeusz Kowinski, deceased, for an order for provision under s 7 of the Family Provision Act 1982 (NSW) (the Act). The deceased died on 26 March 2005 leaving a will made in January 1973, by which he gave the whole of his estate to his wife, Irene Stefanie Kowinski, if she survived him by 30 days. The will failed to make provision in the event that the conditional gift failed. Irene Kowinski died one week before the deceased. Subject to this application, his estate thus passes in accordance with the provisions of the Probate and Administration Act 1898 (NSW) which govern the distribution of intestate estates.

  2. The deceased migrated to Australia from Poland in 1950.  He married his wife, Irene, in 1972.  At the time of the marriage she had two sons by an earlier marriage; the appellants, John and Peter Smilek. They were aged 16 and 14 years respectively. Each lived with the deceased and their mother in the family home until leaving home as an adult. The deceased treated the appellants as his own sons. He appears to have had no living relatives. 

  3. The net value of the estate is around $225,000.  The principal…

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AGLC
Smilek v Public Trustee [2008] NSWCA 190
Case
[2008] NSWCA 190
Decision Date

CaseChat Overview and Summary

The case of *Smilek v Public Trustee* concerned an appeal brought by two adult stepsons of the deceased against orders made by the Supreme Court of New South Wales. The dispute arose from the deceased's will, which left his residuary estate to the Crown as *bona vacantia* due to the absence of any beneficiaries. The appellants sought provision from the estate, arguing they were entitled to a share despite not being biological children or having a formal legal relationship with the deceased at the time of his death.

The central legal issue before the Court of Appeal was whether the appellants, as adult stepsons, qualified as persons for whom the deceased ought to have made provision in his will, and if so, what provision was appropriate. This required the court to consider the scope of the *Succession Act 1981* (NSW) (or its equivalent at the time of the deceased's death) regarding family provision claims, particularly in relation to adult stepchildren and the concept of "advancement in life."

The Court of Appeal allowed the appeal, finding that the deceased had a moral obligation to make provision for his stepsons. The court reasoned that the deceased had treated the appellants as his sons, and they had a close relationship with him. The court considered the appellants' circumstances, including their ages and the fact that they had been "advanced in life" by the deceased to some extent, but concluded that this did not extinguish the deceased's moral duty. The court determined that a one-half share of the residuary estate for each appellant constituted adequate provision. Consequently, the court set aside the previous orders and ordered that each appellant receive a one-half share of the residuary estate, with costs to be paid out of the estate.

Orders

Orders of the court

1. Appeal allowed. 2. Set aside the orders made on 22 October 2007. 3. In lieu thereof, each of the appellants is to receive a one half share of the residuary estate of the deceased. 4. The parties' costs of the appeal and the trial are to be paid out of the estate of the deceased, in the executor's case on an indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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