Smilek v Public Trustee [2008] NSWCA 190

Smilek v Public Trustee [2008] NSWCA 190

The primary judge's dismissal bespoke error because, taking account of prevailing community standards, the appellants' close relationship with and significant non-financial contributions to the deceased, their insufficient retirement provision, the probability of unemployment or early retirement, the absence of competing claims, and the fact that the estate would otherwise pass to the Crown as bona vacantia, no provision for either appellant was inadequate for their proper maintenance and advancement in life. Given the size of the estate and absence of competing claims, each appellant should receive one half of the residuary estate after payment of testamentary costs and litigation costs.

Jurisdiction
Australia
Judgment Date
14 August 2008
Procedural Posture
Family Provision Claim Under S 7 of the Family Provision Act 1982 (nsw) / Appeal From Windeyer J's Dismissal of the Appellants' Claim
Outcome
Appeal allowed.
Legal Topics
['adult Stepsons' 'advancement in Life' 'adequate Provision' 'bona Vacantia' 'appellate Review of Discretionary Decisions']
['succession' 'family Provision'] ['adult Stepsons' 'advancement in Life' 'adequate Provision' 'bona Vacantia' 'appellate Review of Discretionary Decisions']

Case Brief

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Procedural Posture

Family Provision Claim Under S 7 of the Family Provision Act 1982 (nsw) / Appeal From Windeyer J's Dismissal of the Appellants' Claim

Legal Issues

  1. 1 ['Whether the appellants, as eligible persons under s 6(1)(d) of the Family Provision Act 1982 (NSW), had been left without adequate provision for their proper maintenance and advancement in life.' "Whether the primary judge's dismissal of the claims was unreasonable or plainly unjust so as to bespeak error under House v The King." "What provision ought to be made from the deceased's estate if the provision for the appellants was inadequate."]

Ratio Decidendi

The primary judge's dismissal bespoke error because, taking account of prevailing community standards, the appellants' close relationship with and significant non-financial contributions to the deceased, their insufficient retirement provision, the probability of unemployment or early retirement, the absence of competing claims, and the fact that the estate would otherwise pass to the Crown as bona vacantia, no provision for either appellant was inadequate for their proper maintenance and advancement in life. Given the size of the estate and absence of competing claims, each appellant should receive one half of the residuary estate after payment of testamentary costs and litigation costs.

Court Disposition

Appeal allowed.

Orders

  • ['Appeal allowed.' 'Set aside the orders made on 22 October 2007.' 'In lieu thereof, each of the appellants is to receive a one half share of the residuary estate of the deceased.' "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...