Lado Causillas v NSW Trustee and Guardian; Bentancor Lado v NSW Trustee and Guardian [2015] NSWSC 1204

Supreme Court New South Wales

Medium Neutral Citation: Lado Causillas v NSW Trustee and Guardian; Bentancor Lado v NSW Trustee and Guardian [2015] NSWSC 1204 Hearing dates: 16 – 20 March 2015 Date of orders: 27 August 2015 Decision date: 27 August 2015 Jurisdiction: Equity Before: Robb J Decision: (1) The plaintiffs are to bring in short minutes of order within 14 days of the delivery of judgment that will reflect a division of the deceased's estate, after payment of all costs and expenses, in the following proportions: each of the plaintiffs shall receive 30% and each of the two beneficiaries under the will of the deceased will receive 20%.

(2) Subject to order 4, the costs of each of the plaintiffs are to be paid out of the deceased's estate on the ordinary basis.

(3) Subject to order 4, the costs of the defendant in both proceedings are to be paid out of the deceased's estate on the indemnity basis.

(4) The parties are given leave to make any submissions they wish to make that the costs orders should be different to those set out in orders 2 and 3 within 14 days of the delivery of judgment.

(5) Exhibits and subpoenaed documents may be returned forthwith in accordance with the rules of the court. Catchwords: SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicants – applicants are deceased's wife and only adult son – both estranged from the deceased – no provision made in deceased's estate for applicants – applicants 'eligible persons' – two-step approach in s 59 of the Succession Act 2006 (NSW) affirmed – what is "adequate", "proper", "provision", "maintenance" and "advancement in life" pursuant to s 59(1)(c) of the Act – whether provision made by testator is "wise and just" and is right and appropriate assessed against community standards – court has discretionary power and is assisted by s 60 of the Act – effect of long term estrangement of both applicants – relevance of "bare widowhood" and "bare paternity" – each individual case must be assessed on its own unique circumstances