Smoje v Forrester

The case of *Smoje v Forrester* concerned an appeal from a decision of the Supreme Court of New South Wales regarding a family provision claim. The deceased, Miryana Smoje, was terminally ill and residing in a hotel room at the time of her death. The respondent, who had provided occasional care and overnight stays to the deceased in the months preceding her death, sought provision from the estate. The central dispute revolved around whether the respondent and the deceased were "living together" in a "close personal relationship" at the time of the deceased's death, as required for certain family provision entitlements.

The legal issues before the Court of Appeal included whether the primary judge erred in finding that the respondent and the deceased were living together in a close personal relationship. Additionally, the court considered whether the primary judge was entitled to make findings about a mental disability suffered by the respondent, including its impact on his behaviour and credibility, in the absence of any expert evidence to support such findings.

The Court of Appeal allowed the appeal, setting aside the primary judge's orders. The court reasoned that the evidence did not support a finding that the respondent and the deceased were "living together" in the sense contemplated by the relevant legislation. The court also found that the primary judge had impermissibly made findings regarding the respondent's mental state and its effect on his credibility without the necessary expert evidence. Consequently, the plaintiff's summons was dismissed.

The orders made by the Court of Appeal included setting aside the primary judge's orders, dismissing the plaintiff's summons, and ordering that the defendant's costs of the proceedings and the appellant's costs of the appeal be paid out of the deceased's estate on an indemnity basis. The court also ordered the release of funds paid into court by the defendant.