Smith v Public Trustee [2009] NSWSC 268

New South Wales Supreme Court

CITATION : Smith v Public Trustee [2009] NSWSC 268

HEARING DATE(S) : 02/04/2009

JUDGMENT DATE : 8 April 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 8 April 2009

DECISION : Paragraph 51

CATCHWORDS : Family Provision. Application by children of deceased for whom he made no provision. Lack of contact by children with deceased. Whether appropriate to provide for children. - Order for legacies made in favour of children.

PARTIES : Gavin Richard Smith and Melanie Lynden Smith v Public Trustee of New South Wales

FILE NUMBER(S) : SC 4100/2008

COUNSEL : Mr RN O'Neill for plaintiffs Mr A Hill for defendant

SOLICITORS : Coleman & Greig for plaintiffs Anthony Lentini for defendant

- 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 8 APRIL 2009

4100/08 - GAVIN RICHARD SMITH & ANOR v PUBLIC TRUSTEE NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Paul Hornby Smith, who died on 3 August 2007 aged 59 years. He was survived by his two children, who are the plaintiffs in the proceedings. He was divorced from his wife. Last will of the deceased 2 The deceased's last will was made on 27 July 2007, under which he appointed the defendant as executor. He bequeathed his home unit at Good Street, Westmead to his two nephews, Nathan Smith and Adam Smith. He gave the remainder of his estate to the Fred Hollows Foundation. He made no provision for his children, the plaintiffs. Assets in the estate 3 The present assets consist of the home unit having a likely value in the order of $300,000 and cash held in the estate of $281,797, a total of $581,797. The costs incurred are as follows: The defendant $51,000 The plaintiff $46,000 Family history 4 The deceased was born 3 April 1949 and he married in April 1976. He and his wife had two children, Gavin, born in January 1982 and Melanie born in January 1986. In July 1997 the deceased and his wife separated under the same roof. That continued until his wife and two children moved out in December 1997. In due course there were proceedings for divorce and the deceased and his wife were divorced. Under the property settlement she retained the home at Carlingford and the deceased received some $62,540. After the property settlement the deceased's wife and children moved back to the home. Thereafter there was little contact in circumstances which I will detail later. 5 In June 2007 the deceased was admitted to Westmead Hospital with cancer and that was a terminal illness. He was told he only had a few weeks to live and at that time the deceased asked to see his brother, Dennis Smith, to see if the plaintiffs would see him. He also approached a social worker to contact his children. The children decided not to see him and instead wrote to the deceased. 6 He was admitted to palliative care in July 2007. He made his will on 27 July 2007, as I have mentioned. He died on 3 August 2007. Probate was granted and the summons were commenced within time. Eligibility 7 Both the plaintiffs are eligible persons. In applications under the Family Provision Act (supra) the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following: "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."