Smith v Public Trustee - [2009] NSWSC 268

CITATION: Smith v Public Trustee [2009] NSWSC 268

HEARING DATE(S): 02/04/2009

JUDGMENT DATE :
8 April 2009

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 8 April 2009

DECISION: Paragraph 51

CATCHWORDS: Family Provision. Application by children of deceased for whom he made no provision. Lack of contact by children with deceased. Whether appropriate to provide for children. - Order for legacies made in favour of children.

PARTIES: Gavin Richard Smith and Melanie Lynden Smith v Public Trustee of New South Wales

FILE NUMBER(S): SC 4100/2008

COUNSEL: Mr RN O'Neill for plaintiffs
Mr A Hill for defendant

SOLICITORS: Coleman & Greig for plaintiffs
Anthony Lentini for defendant

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THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 8 APRIL 2009

4100/08 - GAVIN RICHARD SMITH & ANOR v PUBLIC TRUSTEE NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Paul Hornby Smith, who died on 3 August 2007 aged 59 years. He was survived by his two children, who are the plaintiffs in the proceedings. He was divorced from his wife.

Last will of the deceased

2 The deceased's last will was made on 27 July 2007, under which he appointed the defendant as executor. He bequeathed his home unit at Good Street, Westmead to his two nephews, Nathan Smith and Adam Smith. He gave the remainder of his estate to the Fred Hollows Foundation. He made no provision for his children, the plaintiffs.

Assets in the estate

3 The present assets consist of the home unit having a likely value in the order of $300,000 and cash held in the estate of $281,797, a total of $581,797. The costs incurred are as follows:

The defendant $51,000
The plaintiff $46,000

Family history

4 The deceased was born 3 April 1949 and he married in April 1976. He and his wife had two children, Gavin, born in January 1982 and Melanie born in January 1986. In July 1997 the deceased and his wife separated under the same roof. That continued until his wife and two children moved out in December 1997. In due course there were proceedings for divorce and the deceased and his wife were divorced. Under the property settlement she retained the home at Carlingford and the deceased received some $62,540. After the property settlement the deceased's wife and children moved back to the home. Thereafter there was little contact in circumstances which I will detail later.

5 In June 2007 the deceased was admitted to Westmead Hospital with cancer and that was a terminal illness. He was told he only had a few weeks to live and at that time the deceased asked to see his brother, Dennis Smith, to see if the plaintiffs would see him. He also approached a social worker to contact his children. The children decided not to see him and instead wrote to the deceased.

6…

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 Smith v Public Trustee

Details

AGLC: Smith v Public Trustee [2009] NSWSC 268
Case: [2009] NSWSC 268
Decision Date: 8 April 2009

CaseChat Overview and Summary

The case before the court involved an application by the children of the deceased, who had not made any provisions for them in his will, seeking to have the will set aside in their favour. The deceased had been estranged from his children for many years, with little to no contact between them. The court was tasked with determining whether it was appropriate to provide for the children, given the absence of any relationship with the deceased during his lifetime.

The primary legal issue that the court had to decide was whether it was appropriate to set aside the will in favour of the children, considering the lack of contact and relationship between the deceased and his children. The court had to assess the factors outlined in the Family Provision Act, such as the nature of the relationship between the deceased and the applicants, the extent of any neglect or misconduct by the deceased, and the needs and resources of the applicants.

In its decision, the court found that the lack of contact and relationship between the deceased and his children did not necessarily preclude the court from making an order in their favour. The court considered that the absence of a relationship did not automatically disqualify the children from receiving a provision from the deceased's estate. Instead, the court focused on the needs and resources of the applicants and whether it was just and equitable to make an order in their favour. The court concluded that it was appropriate to set aside the will and make an order in favour of the children, taking into account their needs and the deceased's ability to provide for them.

The court made an order setting aside the will and directing that legacies be paid to the children. The court found that the children's needs and resources, as well as the deceased's ability to provide for them, were sufficient to justify the order. The court also noted that the absence of a relationship between the deceased and his children did not necessarily preclude the court from making an order in their favour, as long as it was just and equitable to do so.

Orders