Barbuto, Bradley v Barbuto; Barbuto, James v Barbuto [2019] NSWSC 1023

Supreme Court New South Wales

Medium Neutral Citation: Barbuto, Bradley v Barbuto; Barbuto, James v Barbuto [2019] NSWSC 1023 Hearing dates: 1 – 4 July 2019 Date of orders: 13 August 2019 Decision date: 13 August 2019 Jurisdiction: Equity Before: Hallen J Decision: The parties, within 7 days, should provide a form of orders in each case to reflect these reasons. The matter will be listed for argument on the form of orders, if there is any dispute, and for the argument on costs. Catchwords: CIVIL PROCEDURE – Hearings – Order that proceedings be heard together – Two separate proceedings, each seeking a family provision order out of the same estate – Agreement by parties that both proceedings be heard consecutively, with the evidence in one being evidence in the other – Uniform Civil Procedure Rules 2005 (NSW) r 28.5 – Proceedings involve "a common question" and otherwise "desirable to make an order" under the rule

SUCCESSION – Family Provision – Each Plaintiff, a child of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) – The Defendant is the widow of the deceased but was separated from him at the date of his death – Close relationship despite separation – Deceased left Will – Where testamentary trust providing for payment of income or capital to each Plaintiff at the discretion of the Defendant – Initially, issue about nature and value of the estate – Resolved by the date of hearing by Defendant agreeing to proceeds of sale forming part of the estate of the deceased – Estate of moderate value – Whether adequate and proper provision not made in Will of the deceased for each Plaintiff and if so the nature and quantum of the provision to be made