Rada v Smith [2024] NSWSC 273

Supreme Court New South Wales

Medium Neutral Citation: Rada v Smith [2024] NSWSC 273 Hearing dates: 13-14 March 2024 Date of orders: 14 March 2024 Decision date: 14 March 2024 Jurisdiction: Equity Before: Kunc J Decision: Provision ordered for the plaintiff in that amount which is the greater of $300,000 or 60% of the residue Catchwords: SUCCESSION — Family provision — Claim by adult child — Plaintiff lived overseas with her mother since the age of nearly four — "Estrangement" not a useful term Legislation Cited: Succession Act 2006 (NSW) Category: Principal judgment Parties: Rebecca Kelly Rada (Plaintiff) Raymond Paul Smith (First Defendant) Evelyn Nevenka Smith (Second Defendant) Representation: Counsel: K Tang (Plaintiff) MM Pringle (Defendants)

Solicitors: G&A Legal (Plaintiff) TB Law (Defendants) File Number(s): 2023/00214811

EX TEMPORE JUDGMENT (REVISED)

Summary 1. In the legal folklore which surrounded will making in Victorian England, the archetype of the spiteful father was one who disinherited his only child and left everything to the Battersea Dogs Home. That, almost literally, is what the plaintiff says her late father has done to her, albeit in Australia. She seeks a family provision order from his estate under Part 3.2 of the Succession Act 2006 (NSW) (the Act). 2. Without disrespect, I shall refer to the parties and others by their given names. Amounts are in Australian dollars unless otherwise specified, the parties having accepted that for the purposes of these proceedings CAD$1 is equivalent to AUD$1.12. 3. The plaintiff (Rebecca) is the only child of the late Igor Rada and his former wife Carole. In June 1982, when Rebecca was not quite four years old, Carole left Igor and returned to her native Canada with Rebecca. Carole divorced Igor and he never remarried. 4. Rebecca (for whom Mr K Tang of Counsel appeared) has made her life in Canada. Since moving there in 1982 as a young child, she has only had very limited contact with her father. Rebecca blames her father for this. 5. Igor died in July 2022 at the age of 75. He made his last will on 30 March 2022 and included with it a letter explaining why he was leaving nothing to Rebecca, who he described as his "long-estranged" daughter. His estate comprises his former home and cash of approximately $285,000. 6. By his will, Igor left specific legacies totalling $240,000 and his car and personal effects to four friends, most of this being to the defendant executors (who were represented by Mrs M Pringle of Counsel) and who had been his very caring neighbours. None of the specific beneficiaries put their circumstances in issue. 7. Igor left the residue of his estate to Guide Dogs NSW/ACT, a charity with which Igor had no connection during his life. While the precise value of the residue will depend on the price to be achieved for Igor's home, the parties conducted the hearing on the basis that after payment of the specific legacies, the estate's proper expenses and the parties' legal expenses, the residue was likely to be approximately $495,000. 8. Entirely properly, the defendants accepted that Rebecca was entitled to provision from the estate and submitted that the burden of any order should fall on the residuary gift. While not represented in the proceedings, Mrs Pringle's written submissions confirmed that Guide Dogs had approved that concession being made. 9. Therefore, the only issue presented to the Court for determination was what amount of provision from the estate ought to be ordered for Rebecca's maintenance, education and advancement in life having regard to the facts known to the Court at the time the order is made (see s 59(2) of the Act). Mrs Pringle submitted that amount should be $300,000. Mr Tang submitted it should be between $420,000 to $450,000. 10. For the reasons which follow, the Court will order that provision be made for Rebecca from the residue of the estate in that amount which is the greater of $300,000 or 60% of the residue.