Garcia Arenas v Fica; Crosby v Fica [2017] NSWSC 1769

Garcia Arenas v Fica; Crosby v Fica [2017] NSWSC 1769

Each plaintiff was an eligible child of the deceased. The September 2015 will, made in favour of Lilly at a time when the deceased was physically and emotionally vulnerable, did not represent a fair or rational division of the estate when the deceased's family life, financial circumstances, Dasha's minority, and the January 2014 will were considered. Dasha required provision for maintenance and education until adulthood, and Susana, Gemma and Dasha required provision for advancement substantially reflecting the January 2014 scheme, including a buy-out of Susana's notional right of occupation and deferred one-sixth interests in the estate.

Jurisdiction
Australia
Judgment Date
19 December 2017
Procedural Posture
Applications for Family Provision Out of the Estate of Ricardo Garcia / Principal Judgment After Hearing
Outcome
Family provision ordered in principle: Dasha to receive $25,000 and a potentially deferred further $65,000; Susana to receive $100,000 and a potentially deferred further $65,000; Gemma to receive a potentially deferred $65,000. The defendant was directed to bring in Short Minutes of Order to give effect to the...
Legal Topics
['family Provision' 'eligible Person' 'adequate Provision' 'proper Maintenance, Education and Advancement' 'adult Children' 'minor Child' 'testamentary Intentions' 'charge on Property for Legacies']
['succession' 'equity'] ['family Provision' 'eligible Person' 'adequate Provision' 'proper Maintenance, Education and Advancement' 'adult Children' 'minor Child' 'testamentary Intentions' 'charge on Property for Legacies']

Case Brief

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Procedural Posture

Applications for Family Provision Out of the Estate of Ricardo Garcia / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether each plaintiff was an eligible person under Succession Act 2006 (NSW), s 57(1)(c).' "Whether the deceased's September 2015 will failed to make adequate provision for the proper maintenance, education or advancement of each plaintiff under Succession Act 2006 (NSW), s 59(1)(c)." "What provision ought to be made for Dasha's maintenance and education during her minority." "What provision ought to be made for the advancement of Susana and Gemma as adult children and for Dasha by reference to the deceased's January 2014 testamentary scheme." 'Whether provision could be structured as deferred legacies charged on the Glendenning property if Lilly remained living there.']

Ratio Decidendi

Each plaintiff was an eligible child of the deceased. The September 2015 will, made in favour of Lilly at a time when the deceased was physically and emotionally vulnerable, did not represent a fair or rational division of the estate when the deceased's family life, financial circumstances, Dasha's minority, and the January 2014 will were considered. Dasha required provision for maintenance and education until adulthood, and Susana, Gemma and Dasha required provision for advancement substantially reflecting the January 2014 scheme, including a buy-out of Susana's notional right of occupation and deferred one-sixth interests in the estate.

Court Disposition

Family provision ordered in principle: Dasha to receive $25,000 and a potentially deferred further $65,000; Susana to receive $100,000 and a potentially deferred further $65,000; Gemma to receive a potentially deferred $65,000. The defendant was directed to bring in Short Minutes of Order to give effect to the...

Orders

  • ['The Court should make a provision in favour of Dasha in the sum of $25,000.' 'The Court should make a further provision in favour of Susana in the sum of $100,000.' 'The Court should make further provisions for Susana, Gemma and Dasha of $65,000 each.' 'Should Lilly wish to take up the option of raising a mortgage...