NSW Caselaw
New South Wales Court of Appeal
CITATION: Smilek v Public Trustee [2008] NSWCA 190
HEARING DATE(S): 28/7/08
JUDGMENT DATE: 14 August 2008
JUDGMENT OF: McColl JA at 1; Bell JA at 1; Handley AJA at 1
1. Appeal allowed. DECISION: 2. Set aside the orders made on 22 October 2007. 3. In lieu thereof, each of the appellants is to receive a one half share of the residuary estate of the deceased. 4. The parties' costs of the appeal and the trial are to be paid out of the estate of the deceased, in the executor's case on an indemnity basis.
CATCHWORDS: FAMILY PROVISION – advancement in life – adult stepsons – estate passing to the Crown bona vacantia
LEGISLATION CITED: Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW)
CATEGORY: Principal judgment
Collins v McGain [2003] NSWCA 190 House v The King [1936] HCA 40; 55 CLR 499 CASES CITED: Hunter v Hunter (1987) 8 NSWLR 573 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Singer v Berghouse [1994] HCA 40; 181 CLR 201
John Smilek (1st Appellant) PARTIES: Peter Smilek (2nd Appellant) Public Trustee 58 389 343 989 (Respondent)
FILE NUMBER(S): CA 40772/07
COUNSEL: Mr L J Ellison SC (Appellants) Mr D Flaherty (Respondent)
SOLICITORS: MCG Lawyers (Appellants) The Public Trustee (Respondent)
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): 4990/06
LOWER COURT JUDICIAL OFFICER: Windeyer J
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