Di Salvo v Public Trustee [2009] NSWSC 894

New South Wales Supreme Court

CITATION : Di Salvo v Public Trustee [2009] NSWSC 894

HEARING DATE(S) : 23 March 2009

JUDGMENT DATE : 31 August 2009

JUDGMENT OF : McLaughlin AsJ

1. I order that, in lieu of the provisions of clauses 4 to 14 of the will of the late Robert Lawrence Heron ("the Deceased"), the Plaintiff receive absolutely the house property at Mt Pritchard. DECISION : 2. I order that, in addition to the benefit given to her by order 1 hereof and in addition to the other benefits given to her by the will of the Deceased, the Plaintiff receive from the estate of the Deceased a legacy in the sum of $10,000, such legacy not to bear interest if paid on or before 31 September 2009, and if not so paid to bear interest at the rates prescribed for unpaid legacies by the Probate and Administration Act 1898. 3. 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. 4. The exhibits may be returned.

CATCHWORDS : SUCCESSION - family provision - Plaintiff an eligible person - whether Plaintiff was the de facto partner of Deceased or whether she comes within some other category of eligible person - will gives Plaintiff a determinable and conditional right of residence in Deceased's house property - financial and material circumstances of Deceased - whether Plaintiff has been left without adequate provision for her proper maintenance - competing claim of other beneficiaries.

LEGISLATION CITED : Family Provision Act 1982 Property (Relationships) Act 1984

CATEGORY : Principal judgment

CASES CITED : Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19