Hensley v Verdi Hensley-Verdi v Verdi [2004] NSWSC 647

New South Wales Supreme Court

CITATION : Hensley v Verdi Hensley-Verdi v Verdi [2004] NSWSC 647 HEARING DATE(S) : 28, 29, 30 June 2004 JUDGMENT DATE : 23 July 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION :

CATCHWORDS : Family Provision. Claim by a former de facto partner and the son of deceased. Estate not large enough to accommodate all claims particularly having regard to the costs incurred. Orders made in favour of both plaintiffs. PARTIES : Mary Elizabeth Hensley v Hector Edgardo Verdi and Guido Herman Verdi Leonardo Luis Hensley-Verdi by his tutor Pauline Helen Hensley v Hector Edgardo Verdi and Guido Herman Verdi FILE NUMBER(S) : SC 4786 of 2003; 1034 of 2004 Mr P Glissan for Mary Hensley COUNSEL : Mr C Simpson for Leonardo Hensley-Verdi Mrs M.A. Gilmour for defendants Mr Ken Le Lievre for Mary Hensley SOLICITORS : L. Rundle & Co for Leonardo Hensley-Verdi Grech Lawyers for defendants

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Master Macready

Friday 23 July 2004

4786 of 2003 Mary Elizabeth Hensley v Hector Edgardo Verdi and Guido Hernan Verdi. 1034 of 2004 Leonardo Luis Hensley-Verdi by his tutor Pauline Helen Hensley v Hector Edgardo Verdi and Guido Hernan Verdi. JUDGMENT 1 Master: This is the hearing of two applications under the Family Provision Act 1982 (NSW) in respect of the estate of the late Jose Alfonso Verdi who died on 18 July 2002 aged 52 years. The plaintiff Mary Elizabeth Hensley who lived in a de facto relationship with the deceased between 1990 and 1994 brings one claim. They have a child Leonardo who was born on 28 November 1991. The child Leonardo, by his tutor who is his grandmother, has brought the other proceedings against the estate on a defensive basis. I have ordered that both matters be heard together with the evidence in one being evidence in the other. The will of the deceased 2 The deceased made his last will on 3 July 2002 in which he appointed his brother Hector as executor. He provided for his investment in a friendly society to be paid to Leonardo's mother so that it could be used for his education. The will provided for the residuary estate to be divided equally between his sons Guido and Leonardo with Leonardo's share being held until he attains the age of 21 years with a provision for payment of $350.00 per month for his upkeep. 3 The son Guido is the deceased's son by his marriage to Carmen Cuevas. He is presently 30 years of age and lives in Perth, Western Australia. The deceased and his wife divorced in 1990 when Guido was 16 years old. Assets in the estate 4 The main asset in the estate was the deceased's house which has been sold for $468.000.00. The deceased had a car worth $34,000.00, cash of $99,791.91 and some other minor assets. The Friendly Society Scholarship fund, which provides education benefits for Leonardo over a period of his secondary and tertiary education totalling $49,359.09 has been transferred to the plaintiff Mary. 5 After the sale of the house there was a distribution of the balance of the estate. An amount of $240,905.72 was paid to Guido on 22 August 2003. The executor, for Leonardo's share, retained a similar amount. The amount held for Leonardo, as at 19 May 2004 was $246,572.46. 6 The costs incurred to date are as follows. The defendants' costs amount to $79,616.26 to the end of the third day. The plaintiff Mary's costs are estimated at $28,000 to the end of the second day and those of Leonardo are estimated at $38,084.98 to the end of the third day. These total $145,701.24. In respect of the defendants' costs, the second defendant has already paid the sum of $15,000.00 to the estate's former solicitors, Emmerson and Emmerson.