Smith v Moore [2020] NSWSC 1446

Smith v Moore [2020] NSWSC 1446

The plaintiff failed to satisfy the Court that the deceased's will did not make adequate provision for his proper maintenance, education or advancement in life, as the evidence regarding his financial circumstances, including the nature of his relationship and financial dependence with Ms Nelson, was insufficient. Without evidence of Ms Nelson's financial position, the Court could not assess whether further provision was required under the Succession Act 2006 (NSW).

Parties
Plaintiff: Kenneth David Smith; Defendant: Minerva Ruth Moore
Jurisdiction
Australia
Judgment Date
19 October 2020
Procedural Posture
Family Provision / Principal Judgment
Outcome
Application dismissed
Legal Topics
Family Provision Claim, Adult Child, Adequate Provision, Eligible Person, Estate Administration
Succession Family Provision Claim Adult Child Adequate Provision Eligible Person Estate Administration

Case Brief

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Parties

Kenneth David Smith

Plaintiff

Minerva Ruth Moore

Defendant

Procedural Posture

Family Provision / Principal Judgment

Legal Issues

  1. 1 Whether adequate provision has been made for the plaintiff out of the deceased's estate for his proper maintenance, education and advancement in life under the Succession Act 2006 (NSW)
  2. 2 Whether the plaintiff provided sufficient evidence of his financial circumstances to satisfy the Court to make a provision order
  3. 3 Whether the plaintiff's relationship with another person affects the assessment of his financial need

Ratio Decidendi

The plaintiff failed to satisfy the Court that the deceased's will did not make adequate provision for his proper maintenance, education or advancement in life, as the evidence regarding his financial circumstances, including the nature of his relationship and financial dependence with Ms Nelson, was insufficient. Without evidence of Ms Nelson's financial position, the Court could not assess whether further provision was required under the Succession Act 2006 (NSW).

Court Disposition

Application dismissed

Orders

  • Order that the summons filed on 20 June 2019 is dismissed.
  • Parties to file written submissions regarding costs within 14 days; replies within 21 days.