Aranas v Berry [2002] NSWSC 355

Reported Decision : (2003) DFC 95-263

New South Wales Supreme Court

CITATION : Aranas v Berry [2002] NSWSC 355 FILE NUMBER(S) : SC 3427/00 HEARING DATE(S) : 6, 7, 8 February 2002 JUDGMENT DATE : 26 April 2002

PARTIES : Amalia Aranas (Plaintiff) Robert Aubrey Berry (Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : R. Taperell (Plaintiff) A.J. O'Brien (Defendant) SOLICITORS : Cantle Carmichael Lawyers (Plaintiff) J.A. O'Brien & Co Solicitors (Defendant) CATCHWORDS : Family Provision - Status of Plaintiff as an eligible person - Whether the Plaintiff was de facto spouse of Deceased - Matters to be considered - During first four years of relationship Plaintiff resided with Deceased for no more than four nights each week - Statements by Plaintiff in income tax returns are inconsistent with a de facto relationship with Deceased - Continuing receipt by Plaintiff of social security benefits is inconsistent with de facto relationship with the Deceased - Credit of Plaintiff - Plaintiff was de facto spouse of Deceased for last two years of his life - Financial and material circumstances of Plaintiff - Nature of order for provision to which Plaintiff is entitled - In considering the accommodation appropriate for Plaintiff the Court should look to the needs of the Plaintiff, not to the needs of her children or grandchildren - Competing claim of the Defendant - Defendant is the only other eligible person and is the sole beneficiary - Financial and material circumstances of Defendant. LEGISLATION CITED : Family Provision Act 1982 Property (Relationships) Act 1984 CASES CITED : Roy v Sturgeon (1986) 11 NSWLR 454 DECISION : 1. I order that the Plaintiff receive from the estate of the late Aubrey Thomas Berry ("the Deceased") a legacy in the sum of $145,000, such legacy not to bear interest if paid on or before 26 July 2002, and if not so paid to bear interest at Supreme Court rates.; 2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.; 3. The exhibits may be returned (other than Exhibit B, which will be retained in the Court file).