Smith v Johnson

The Court of Appeal of New South Wales heard an appeal concerning a family provision claim brought by an adult son against his mother's moderately substantial estate. The claimant, who had been dependent on his parents, sought further provision from the estate, while his siblings were described as relatively well off. An interim distribution made to the claimant under the will had been offset against costs he owed to the estate arising from prior intra-family litigation.

The central legal issues before the Court of Appeal were whether the primary judge had erred in finding that the claimant's conduct in the previous litigation did not preclude him from receiving a family provision order, and whether that conduct could be characterised as malicious or in bad faith. Further, the court considered whether the primary judge's assessment of the claimant's financial needs, specifically the inclusion of a provision for a two-bedroom apartment, was appropriate, and whether the primary judge's discretion had miscarried in making the family provision order.

The Court of Appeal found that the primary judge had erred in their assessment. The court determined that the claimant's conduct in the intra-family litigation was of such a nature as to disentitle him to a family provision order. Consequently, the court allowed the appeal, setting aside the orders made by the primary judge and dismissing the plaintiff's summons. The respondent was ordered to pay the appellant's costs of the appeal.