Mas v The Estate of Gallaty Mas-Gallaty v Gallaty [2013] NSWSC 274

Mas v The Estate of Gallaty Mas-Gallaty v Gallaty [2013] NSWSC 274

Because both Mariela Mas and Patrick Daniel Mas-Gallaty were eligible persons entitled to provision, and the estate was wholly inadequate to satisfy all testamentary gifts and family provision claims, the pecuniary legacies and residuary gift should fail, Mariela Mas should receive the house, and Patrick Daniel Mas-Gallaty should receive the remaining cash after costs and be protected by an indexed $75,000 charge over the house payable at age 18.

Jurisdiction
Australia
Judgment Date
18 March 2013
Procedural Posture
Family Provision Application in the Equity Division Concerning the Estate of Patrick Francis Gallaty / Ex Tempore Judgment After Hearing; Provision and Extension of Time Orders Made
Outcome
Family provision orders made; time for bringing both applications extended; deceased's de facto wife to receive the whole of the estate subject to an indexed charge in favour of their son securing $75,000 payable at age 18.
Legal Topics
['family Provision' 'de Facto Wife Claim' 'minor Child Claim' 'inadequate Estate' 'extension of Time' 'costs' 'abatement of Testamentary Gifts']
['succession' 'equity'] ['family Provision' 'de Facto Wife Claim' 'minor Child Claim' 'inadequate Estate' 'extension of Time' 'costs' 'abatement of Testamentary Gifts']

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Procedural Posture

Family Provision Application in the Equity Division Concerning the Estate of Patrick Francis Gallaty / Ex Tempore Judgment After Hearing; Provision and Extension of Time Orders Made

Legal Issues

  1. 1 ["How provision should be made for the deceased's de facto wife and minor son out of a wholly inadequate estate." 'Whether pecuniary legacies and the residuary gift to the Bible Society in Australia Inc should be maintained in light of the family provision claims.' 'What amount should be secured for Patrick Daniel Mas-Gallaty by a charge over the Minto house and when it should become payable.' 'Whether the time for Patrick Daniel Mas-Gallaty to bring his application should be extended.']

Ratio Decidendi

Because both Mariela Mas and Patrick Daniel Mas-Gallaty were eligible persons entitled to provision, and the estate was wholly inadequate to satisfy all testamentary gifts and family provision claims, the pecuniary legacies and residuary gift should fail, Mariela Mas should receive the house, and Patrick Daniel Mas-Gallaty should receive the remaining cash after costs and be protected by an indexed $75,000 charge over the house payable at age 18.

Court Disposition

Family provision orders made; time for bringing both applications extended; deceased's de facto wife to receive the whole of the estate subject to an indexed charge in favour of their son securing $75,000 payable at age 18.

Orders

  • ['Order pursuant to section 16(2) of the Family Provision Act 1982 that the time for bringing the application by Patrick Daniel Mas-Gallaty, in proceeding 2013/69536, be extended until and including the date of filing of the summons in that proceeding.' 'Orders in accordance with paragraphs 1 to 5 as amended of the...