Smith v Smith [2016] NSWSC 1077

Supreme Court New South Wales

Medium Neutral Citation: Smith v Smith [2016] NSWSC 1077 Hearing dates: 19 and 20 July 2016 Date of orders: 09 August 2016 Decision date: 09 August 2016 Jurisdiction: Equity Before: Hallen J Decision: The Court orders:

(i) Having found that each Plaintiff is an eligible person, and that adequate provision for his, and her, proper maintenance or advancement in life, respectively, has not been made in the Will of the deceased, that the first Plaintiff, Mark Sonny Smith, in lieu of the provision made for him in the Will of the deceased, receive a lump sum of $90,000; and that the second Plaintiff, Leanne Cara Smith, in lieu of the provision made for her in the Will of the deceased, receive a lump sum of $100,000.

(ii) That pursuant to s 72 of the Succession Act 2006, each family provision order take effect as if the provision was made as a codicil altering Clause 4(a)(i) and (ii) respectively of the deceased's Will.

(iii) That no interest is to be paid on each lump sum, if that lump sum is paid within 14 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from the share of the estate passing to Lucas, from that date until the date of payment of the lump sum.

(iv) Orders that the provision for each Plaintiff be borne by the share of the estate passing to the beneficiaries identified in Clause 4(a)(iv) of the deceased's Will.

(v) If agreement cannot be reached on how costs are to be paid, any argument regarding the costs of the proceedings is to be heard on a date to be arranged at the time of the publication of these reasons.