Marcuola-Bel Estate: Ines Marcuola-Bel v. Thi Ly Tran [2005] NSWSC 1182

New South Wales Supreme Court

CITATION : Marcuola-Bel Estate: Ines Marcuola-Bel v. Thi Ly Tran [2005] NSWSC 1182

HEARING DATE(S) : 16 and 17 November 2005

JUDGMENT DATE : 17 November 2005

Equity Division JURISDICTION : Probate List

JUDGMENT OF : Palmer J

DECISION : Provision ordered.

CATCHWORDS : FAMILY PROVISION ACT – Whether claimant in de facto relationship with deceased – whether claimant entitled to provision from deceased's estate.

LEGISLATION CITED : Family Provision Act 1982 (NSW) – s.7

D'Albora v D'Albora [1999] NSWSC 468 Ernst v Mowbray [2004] NSWSC 1140 CASES CITED : Hardcastle v Perkuhn [1999] NSWSC 860 Luciano v Rosenblum (1985) 2 NSWLR 65

Ines Marcuola-Bel – Plaintiff/First Cross Defendant PARTIES : Thi Ly Tran – Defendant/Cross Claimant Maria Mollame – Second Cross Defendant

FILE NUMBER(S) : SC 117205/02

In person – Plaintiff/First Cross Defendant COUNSEL : J.R. Wilson SC – Defendant/Cross Claimant I.S. McLachlan – Second Cross Defendant

In person – Plaintiff/First Cross Defendant SOLICITORS : Thomas Tarmo & Co – Defendant/Cross Claimant Warren & Warren – Second Cross Defendant

LOWER COURT JURISDICTION :

Ex tempore Introduction

1 These proceedings were commenced by the Plaintiff who sought revocation of the grant of probate to the defendant of a will of Giovanni Marcuola-Bel dated 31 March 1998. The Plaintiff sought the grant to her of probate of a later will of the deceased dated 21 July 2002. The Plaintiff's claim succeeded and she was granted probate of the 2002 will. The Defendant has cross claimed for an order under s.7 of the Family Provision Act 1982 (NSW) and it is that claim which is now being determined. 2 For the sake of convenient reference and without intending any disrespect, I will refer to the family members by their first names. 3 The Defendant/Cross Claimant, ("Ly") claims to have been the de facto wife of the deceased at the time of his death. The Plaintiff/First Cross Defendant ("Ines") is one of the deceased's daughters and is the executrix of the deceased's 2002 will. The Second Cross Defendant ("Mrs Mollame") is the former wife of the deceased. She was joined as a necessary party because Ly claimed that an asset of the deceased's estate had been transferred to Mrs Mollame by Ines as executrix at an under-value, so that it should be declared notional estate. That claim has been compromised and I need say nothing further about it at this stage.