Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324

Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324

The Court found, on the totality of the evidence, that Juan Jose Bernengo and the Deceased had for the requisite period a relationship as a couple living together within the meaning of the relevant statutes. The relationship exhibited mutual emotional and practical support, shared residence most of the time, regular interaction, financial intermingling typical for age and circumstances, and the conduct and reputation of a couple, albeit concealed from the public and family for personal reasons. Thus, Bernengo was the surviving spouse and entitled to the whole of the estate on intestacy.

Jurisdiction
Australia
Judgment Date
01 October 2019
Procedural Posture
Succession/equity / Principal Judgment at First Instance
Outcome
Plaintiff succeeded. Court declared Bernengo was the surviving spouse and entitled to the estate. Letters of administration granted. Parties directed to file and exchange costs submissions.
Legal Topics
['intestacy' 'de Facto Relationship' 'domestic Partnership' 'spouse Entitlement' 'family Provision' 'letters of Administration']
['succession Law' 'equity'] ['intestacy' 'de Facto Relationship' 'domestic Partnership' 'spouse Entitlement' 'family Provision' 'letters of Administration']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Succession/equity / Principal Judgment at First Instance

Legal Issues

  1. 1 ['Whether Juan Jose Bernengo was the spouse (as a party to a domestic partnership) of the late Shirley Joan Violet Gardner at the time of her death within the meaning of s 111 of the Succession Act 2006 (NSW)' "Whether, in the alternative, Juan Jose Bernengo is an 'eligible person' entitled to provision from the estate under s 59 of the Succession Act"]

Ratio Decidendi

The Court found, on the totality of the evidence, that Juan Jose Bernengo and the Deceased had for the requisite period a relationship as a couple living together within the meaning of the relevant statutes. The relationship exhibited mutual emotional and practical support, shared residence most of the time, regular interaction, financial intermingling typical for age and circumstances, and the conduct and reputation of a couple, albeit concealed from the public and family for personal reasons. Thus, Bernengo was the surviving spouse and entitled to the whole of the estate on intestacy.

Court Disposition

Plaintiff succeeded. Court declared Bernengo was the surviving spouse and entitled to the estate. Letters of administration granted. Parties directed to file and exchange costs submissions.

Orders

  • ['Declare Juan Jose Bernengo is the surviving spouse of the late Shirley Joan Violet Gardner.' 'Grant Juan Jose Bernengo letters of administration in respect of the Estate of Shirley Joan Violet Gardner.' 'Direct the parties to file and exchange written submissions in relation to costs of the proceedings by 4.00pm...