Abrego v Simpson [2008] NSWSC 215

New South Wales Supreme Court

CITATION : Abrego v Simpson [2008] NSWSC 215

HEARING DATE(S) : 3 and 4 March 2008

JUDGMENT DATE : 13 March 2008

JURISDICTION : Equity Division

JUDGMENT OF : Windeyer J at 1

DECISION : Provision for plaintiff made

CATCHWORDS : FAMILY PROVISION AND MAINTENANCE - claim by husband - short period of marriage - consideration of character and conduct of eligible person - whether life estate for surviving spouse appropriate - COSTS - Family Provision Act claim - amount of costs - lack of proportionality

LEGISLATION CITED : Family Provision Act 1982 Testators Family Maintenance Act 1916

CATEGORY : Principal judgment

CASES CITED : Crisp v Burns Philp Trustee Company (Supreme Court of New South Wales, Holland J, 18 December 1979, unreported) Wentworth v Wentworth (Supreme Court of New South Wales, Bryson J, 14 June 1991, unreported)

PARTIES : Gasper Abrego (Plaintiff) Danny Kenneth Simpson (Defendant)

FILE NUMBER(S) : SC 3704 of 2006

COUNSEL : G C Lindsay SC with him Mr C P Locke (Plaintiff) M Lawson (Defendant)

SOLICITORS : Oliveri Lawyers (Plaintiff) Redmond Hale Simpson (Defendant)

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

WINDEYER J

THURSDAY 13 MARCH 2008.

3704/06 GASPER ABREGO V DANNY KENNETH SIMPSON JUDGMENT 1 The plaintiff, Gasper Abrego, seeks provision for his maintenance and advancement from the estate of his wife, Kathleen Wells, who died on 1 June 2006 aged 81 years. 2 The deceased left a will dated 7 March 2006, probate of which was granted to the defendant on 11 July 2006. 3 By her will, the deceased gave legacies of $5,000 to her nephew, Terry Wilson and to Jason Abrego. She gave a legacy of $50,000 to her grandson, Michael Wells. She provided that the net proceeds of sale of her property 6/11 Eddystone Road, Bexley should be divided equally among her nephews, Terry Wilson, Dennis Wilson and Alex Gibson. She gave to her husband, the plaintiff, the contents of her property provided he collected those contents within three months of the date of her death. She gave the residue of her estate as to 1/17th of it to the Foundation Fighting Blindness, as to a further 1/17th to Diabetes Australia (NSW), to a further 1/17th to the Cancer Council of New South Wales, as to 7/17ths to St Gabriel's Church at Bexley for the charitable purposes of that church and as to the remaining 7/17ths to St Patrick's Catholic Church in Sydney for the charitable purposes of that church. The will, after these provisions, then included the following paragraph: And I declare that I have not made greater provision in this my will for my husband, Gasper Abrego, because we have been married only for a short time and we are now separated and he has been guilty of physically mistreating me. 4 The assets at death consisted of the following: Bexley property $380,000 Money in bank accounts $226,271 Shares $ 11,758 Total $618,029