MJM Lawyers

MJM Lawyers Knowledge Base

It’s what you know.

Family Provision case - financial disclosure

Smith v Moore [2020] NSWSC 1446

Williams J

Facts: Yvonne Gwendoline Smith (‘the deceased’) passed away on 25 June 2018, leaving eight of her nine children and a Will dated 20 August 2014 (‘the Will’). The Will gifted pecuniary legacies to 6 of the deceased’s 8 surviving children and left the residue of her estate to two of her daughters as tenants in common in equal shares. The defendant, Ruth, was appointed Executor of the deceased’s estate and was one of the two daughters to receive the remainder of the estate. The Plaintiff, Ken, received $30,000 from the deceased’s estate pursuant to the Will. The parties agreed that the value of the estate as at the date of the hearing was $619,567.71. By way of summons, the Plaintiff commenced proceedings seeking an order that provision be made from the deceased’s estate and/or notional estate for his maintenance, education and advancement in life.

The Plaintiff contended that he had a close and loving relationship with the deceased. At the time of the hearing, he was 63 years old, working as a painter with debts in the amount of approximately $115,454. He sought further provision in the amount of $150,000, in addition to the $30,000 already received.

The Defendant propounded two reasons for which the Plaintiff should not receive additional funds from the deceased’s estate. The first reason was that the Plaintiff’s evidence in relation to his financial circumstances was not sufficient to enable to Court to assess his financial position even at a ‘broad outline’ level. The second reason was that the Plaintiff did not have a close and loving relationship with the deceased; rather their contact was sporadic and cursory.

Held: Her Honour considered the nature of the relationship between the Plaintiff and his ex-partner, Ms Nelson. Although the Plaintiff contended, and the Court accepted, that he and Ms Nelson were not in a de facto relationship, the Court held that the nature of his relationship with Ms Nelson was one of financial dependence and support. For example, the Court considered the fact that the Plaintiff financially supported Ms Nelson during the time shared a residence in Queensland, and Ms Nelson supported the Plaintiff when he moved to Valla in 2018 in order to continue their relationship. Her Honour rejected the Plaintiff’s evidence that he owed Ms Nelson approximately $50,000, instead concluding that that evidence was artificially manufactured to assist the Plaintiff in his claim.

As to the nature of the relationship of the Plaintiff and the deceased, her Honour concluded that although they had a close and loving relationship up until the Plaintiff was 22, once he moved out of home and subsequently to Queensland in 1985 his in person contact with the deceased decreased to no more than once a year. Her Honour did however consider that the deceased loved the Plaintiff and enjoyed the contact she had with him. It was concluded that the Defendant and her husband had far greater contact with the deceased than the Plaintiff and although the Plaintiff had offered to assist with the deceased’s care and/or work that needed to be done in relation to her home, the Defendant had not taken up his offers.

Williams J ultimately held that due to the lack of reliable financial evidence, it was not possible for the Court to reach the state of positive satisfaction required by s 59(1)(c) of the Succession Act that adequate provision was not made for the Plaintiff in the deceased’s Will. Therefore, the Plaintiff’s claim was dismissed, and costs were ordered to be determined on the papers.