Fede v Dell'Arte [2010] NSWSC 1113

New South Wales Supreme Court

CITATION : Fede v Dell'Arte [2010] NSWSC 1113

HEARING DATE(S) : 27 September 2010; 28 September 2010

JUDGMENT DATE : 8 October 2010

JUDGMENT OF : Hallen AsJ

1. The Plaintiff is an eligible person and there are factors warranting the making of her application. DECISION : 2. The deceased ought to have provided the Plaintiff with a larger capital sum, which sum could be used by her, if she considers it appropriate to do so, as a deposit, or part of a deposit, on a home. The capital sum should have been sufficient to enable her to pay off her debts if she wishes to use the amount or part of it for that purpose. In all the circumstances, an additional lump sum, of $265,000 would be adequate and proper. That amount is to include any unpaid interest on the legacy that was paid on the morning of the first day of the hearing. 3. I direct the parties to bring in short minutes that reflect these reasons. I shall hear the parties on the question of costs if either party wishes to argue it. Otherwise, the parties should include in short minutes the usual orders for costs.

CATCHWORDS : SUCCESSION - Family Provison - Eligible person - Claim of grandchild - Grandchild living in home of deceased for 11 years - Whether grandchild dependant on deceased - Held dependant - Whether there are factors warranting an application - Held such factors exist - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance and advancement - competing claim of beneficiary - nature of provision to be made for Plaintiff

Family Provision Act 1982 Succession Act 2006 LEGISLATION CITED : Succession Amendment (Family Provision) Act 2008 Civil Liability Act 2002 Government Gazette No 38, page 1036