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Smith v Smith

Smith v Smith

Case [2011] NSWSC 938 31 August 2011

Wills & Testamentary Capacity

Executor Duties

Failure to Comply with Court Orders

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Smith & Anor v Smith [2011] NSWSC 938
Hearing dates: 22 August 2011; 23 August 2011
Decision date: 31 August 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
Direct the parties to bring in short minutes of order to reflect these reasons.
Stand the proceedings over to a mutually convenient date to make orders and, if agreement cannot be reached, for argument as to costs.

Catchwords: Summons filed by two Plaintiffs, each of whom is a son of the deceased - the oldest son of the deceased and the executor named in the deceased's Will is Defendant - no provision made for each Plaintiff in Will of the deceased - real issue is nature and quantum of provision, if any, to be made for each Plaintiff - Small estate - Also proceedings commenced in the Common Law Division, in which possession of real estate owned by the deceased was sought - failure by Plaintiffs to comply with orders of the Court in those proceedings - Modest provision to be made for each Plaintiff
Legislation Cited: Family Provision Act 1982
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Cases Cited: Barna v Barna [2008] NSWSC 1408
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2008] NSWSC 304
Foley v Ellis [2008] NSWCA 288
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Leaway v Newcastle City Council (No 2) [2005] NSWSC 826; (2005) 220 ALR 757
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
Mayfield v Lloyd-Williams [2004] NSWSC 419
Permanent Trustee Company v Fraser (1995) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19)
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Taylor v Farrugia [2009] NSWSC 801
Tchadovitch v Tchadovitch [2010] NSWCA 316
Thom v The Public Trustee (NSWSC, 2 April, 1992, unreported)
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Category: Principal judgment
Parties: Keith Milton Smith (first Plaintiff)
Darren Robert Smith (second Plaintiff)
Colin William Edward Smith (Defendant)
Representation: Counsel:
Mr M Thompson (Plaintiffs)
Ms J Needham SC; Mr S Chapple (Defendant)
Solicitors:
Gerard Malouf &…

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 Smith

Details

AGLC: Smith v Smith [2011] NSWSC 938
Case: [2011] NSWSC 938
Decision Date: 31 August 2011

CaseChat Overview and Summary

The case of Smith v Smith involved two plaintiffs, sons of the deceased, who filed summons against the defendant, the deceased's oldest son and executor of the will. The central dispute was the nature and quantum of any provision to be made for each plaintiff under the deceased's will, which contained no specific bequest for either of them. The estate was modest, and there were also proceedings in the Common Law Division seeking possession of real estate owned by the deceased. The plaintiffs' failure to comply with court orders in those proceedings further complicated the matter.

The legal issues before the court included determining the nature and extent of the provision to be made for each plaintiff under the will, as well as addressing the plaintiffs' non-compliance with the court's orders in the Common Law Division. The court had to balance the statutory provisions concerning the distribution of an estate with the need to consider the equitable principles that might apply given the circumstances of the case.

The court determined that while the will did not explicitly provide for the plaintiffs, an equitable distribution should be made to both of them. The court found that the non-compliance of the plaintiffs with the court's orders in the other proceedings did not absolve them from receiving a modest provision. The court concluded that each plaintiff should receive a reasonable sum from the estate, reflecting the modest nature of the estate and the need to balance the rights of the parties involved.

The final orders of the court directed that each plaintiff receive a modest provision from the estate, reflecting the court's equitable considerations and the need to address the plaintiffs' non-compliance with previous court orders.

Orders