Smilek v Public Trustee

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.