Marando v Rizzo [2012] NSWSC 739

Marando v Rizzo [2012] NSWSC 739

The plaintiff was not in a de facto relationship with the deceased at the date of his death and thus not eligible under s 57(1)(b) of the Succession Act 2006. However, she was partly dependent and a member of his household under s 57(1)(e), constituting an eligible person. There were factors warranting the application, and in light of her financial circumstances and lack of adequate provision in the will, the plaintiff was entitled to a lump sum provision of $50,000 for her proper maintenance or advancement in life.

Jurisdiction
Australia
Judgment Date
05 July 2012
Procedural Posture
Family Provision Claim (succession) / Final Judgment at First Instance
Outcome
Plaintiff's application for family provision order allowed in part.
Legal Topics
['family Provision' 'de Facto Relationships' 'eligibility for Family Provision Orders' 'partial Dependency' 'adequacy of Provision' 'testamentary Intention']
['succession Law' 'equity'] ['family Provision' 'de Facto Relationships' 'eligibility for Family Provision Orders' 'partial Dependency' 'adequacy of Provision' 'testamentary Intention']

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Procedural Posture

Family Provision Claim (succession) / Final Judgment at First Instance

Legal Issues

  1. 1 ['Whether the plaintiff was an eligible person for a family provision order under Succession Act 2006 s 57(1)(b) or (e)' 'Whether the plaintiff was in a de facto relationship with the deceased at the time of his death' 'Whether the plaintiff was partly dependent on the deceased and a member of his household' 'Whether there were factors warranting the making of the application' "Whether adequate provision was made for the plaintiff's proper maintenance or advancement in life" "What amount, if any, should be ordered out of the deceased's estate for the plaintiff"]

Ratio Decidendi

The plaintiff was not in a de facto relationship with the deceased at the date of his death and thus not eligible under s 57(1)(b) of the Succession Act 2006. However, she was partly dependent and a member of his household under s 57(1)(e), constituting an eligible person. There were factors warranting the application, and in light of her financial circumstances and lack of adequate provision in the will, the plaintiff was entitled to a lump sum provision of $50,000 for her proper maintenance or advancement in life.

Court Disposition

Plaintiff's application for family provision order allowed in part.

Orders

  • ['Order that plaintiff receive out of the estate of the deceased a lump sum of $50,000.' 'No interest is to be paid on the lump sum if paid within 28 days of orders or as otherwise agreed or ordered; otherwise, interest at statutory rate applies (s 84A(3) Probate and Administration Act 1898) until paid.' 'Costs of...