NSW Caselaw
New South Wales Supreme Court
CITATION : Guisande v Rosario [2008] NSWSC 860
HEARING DATE(S) : 1 May 2008
JUDGMENT DATE : 21 August 2008
JUDGMENT OF : McLaughlin AsJ
1. I order that, in lieu of the benefits given to her by clauses 4 and 5 in the will of the late Eduardo Hernandez Guisande ("the Deceased"), and in addition to the other benefits given to her by that will, the Plaintiff receive a legacy in the sum of $360,000, such legacy not to bear interest if paid on or before 21 November 2008, and if not so paid to bear interest at the rates prescribed for unpaid legacies by the Probate and Administration Act 1898. DECISION : 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.
CATCHWORDS : SUCCESSION - family provision - claim by widow - lengthy marriage - matrimonial home is only significant asset - plaintiff given right of residence - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance - competing claims of other beneficiaries - claim of a widow is not automatically to be accorded primacy over all other claims.
LEGISLATION CITED : Family Provision Act 1982
CATEGORY : Principal judgment
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 CASES CITED : Bladwell v Davis [2004] NSWCA 170 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19
PARTIES : Mercedes Bernia Guisande (Plaintiff) Rosario Kitto (Defendant)
FILE NUMBER(S) : SC 2573 of 2007
COUNSEL : Mr P. Blackburn-Hart SC (Plaintiff) Mr R. Tregenza (Defendant)
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