Kelly v Deluchi [2012] NSWSC 841

Kelly v Deluchi [2012] NSWSC 841

Both Peter and Michele are eligible persons who have not received adequate provision for their proper maintenance or advancement in life; the Court orders that provision be made by a legacy of $150,000 for Peter and $100,000 for Michele, such provision to be funded partly from the actual estate and partly by a notional estate order over property in the superannuation fund, with their costs also to be paid out of the notional estate. The widow's interests are sufficiently protected by substantial assets remaining to her after provision for the Plaintiffs.

Parties
First Plaintiff: Mark Edward Kelly; Second Plaintiff: Peter Roy Kelly; Third Plaintiff: Michele Jacqueline Twa; First Defendant: Alexander Deluchi; Second Defendant: Robyn Andreazza; Third Defendant: Mary Kelly; Fourth Defendant: R E Kelly Consulting Services Pty Limited
Jurisdiction
Australia
Judgment Date
26 July 2012
Procedural Posture
Family Provision Application / Principal Judgment; Reasons Delivered; Matter Stood Over for Orders and Costs Arguments
Outcome
Family provision orders to be made in favour of Peter and Michele; notional estate orders indicated; matter stood over for formal orders and costs arguments.
Legal Topics
Family Provision, Notional Estate, Superannuation Death Benefits, Adequacy of Provision for Children, Testamentary Intentions, Costs in Succession Proceedings
Succession Law Equity Family Provision Notional Estate Superannuation Death Benefits Adequacy of Provision for Children Testamentary Intentions Costs in Succession Proceedings

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Parties

Mark Edward Kelly

First Plaintiff

Peter Roy Kelly

Second Plaintiff

Michele Jacqueline Twa

Third Plaintiff

Alexander Deluchi

First Defendant

Robyn Andreazza

Second Defendant

Mary Kelly

Third Defendant

R E Kelly Consulting Services Pty Limited

Fourth Defendant

Procedural Posture

Family Provision Application / Principal Judgment; Reasons Delivered; Matter Stood Over for Orders and Costs Arguments

Legal Issues

  1. 1 Whether adequate provision for proper maintenance or advancement in life was made for eligible children of the deceased under the will
  2. 2 Whether a notional estate order should be made in respect of superannuation property held by the trustee
  3. 3 Nature and amount of provision to be ordered for Plaintiffs

Ratio Decidendi

Both Peter and Michele are eligible persons who have not received adequate provision for their proper maintenance or advancement in life; the Court orders that provision be made by a legacy of $150,000 for Peter and $100,000 for Michele, such provision to be funded partly from the actual estate and partly by a notional estate order over property in the superannuation fund, with their costs also to be paid out of the notional estate. The widow's interests are sufficiently protected by substantial assets remaining to her after provision for the Plaintiffs.

Court Disposition

Family provision orders to be made in favour of Peter and Michele; notional estate orders indicated; matter stood over for formal orders and costs arguments.

Orders

  • Direct the parties to bring in short minutes of order to reflect the reasons and the proposed orders.
  • Matter stood over for the making of formal orders and arguments as to costs.