Smith v Moore [2020] NSWSC 1446

Supreme Court New South Wales

Medium Neutral Citation: Smith v Moore [2020] NSWSC 1446 Hearing dates: 17 and 18 August 2020 Date of orders: 19 October 2020 Decision date: 19 October 2020 Jurisdiction: Equity - Family Provision List Before: Williams J Decision: The plaintiff's application for provision out of the estate of the late Yvonne Gwendoline Smith is dismissed. Catchwords: SUCCESSION – family provision – claim by adult child for provision out of the deceased's estate – claimant is one of eight surviving adult children of deceased – deceased's last will provided a pecuniary legacy to the claimant and five of the other adult children with the residue of the estate given to the defendant executor and another adult child – common ground that burden of any provision in favour of claimant would fall on residuary beneficiaries – claimant and residuary beneficiaries each had a close and loving relationship with the deceased – residuary beneficiaries closely involved in caring for deceased as she aged – where claimant found to be in a long-standing close relationship with another person in which they depend on each other for mutual financial support – where claimant's debts exceed his total assets and expenditure exceeds income but no evidence of financial position of the other person in the relationship – where claimant and other person in the relationship gave false evidence that the claimant was indebted to the other person – not satisfied that adequate provision has not been made in the deceased's will for the claimant's proper maintenance, education and advancement in life – summons dismissed Legislation Cited: Succession Act 2006 (NSW), ss 57, 58, 59, 60 and 61 Cases Cited: Amaca Pty Ltd v Novek [2009] NSWCA 50 Blendell v Blendell [2020] NSWCA 154 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Chan v Chan [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Collings v Vakas [2006] NSWSC 393 Doshen v Pedisich [2013] NSWSC 1507 Foley v Ellis [2008] NSWCA 288 Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 Hampson v Hampson [2010] NSWCA 359 Harris v Carter [2020] NSWSC 196 Keaton v Gumulak [2020] NSWSC 943 Middleton v Kiama District Hospital [1970] 3 NSWR 136 Olsen v Olsen (2019) 101 NSWLR 225; [2019] NSWCA 278 Page v Hull-Moody [2020] NSWSC 411 Sgro v Thompson [2017] NSWCA 326 Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Category: Principal judgment Parties: Kenneth David Smith (Plaintiff) Minerva Ruth Moore (Defendant) Representation: Counsel: Mr J E Armfield (Plaintiff) Mr S F Hughes (Defendant)