Aranas v Berry - [2002] NSWSC 355

Reported Decision:
(2003) DFC 95-263

New South Wales

Supreme Court

CITATION: Aranas v Berry [2002] NSWSC 355

FILE NUMBER(S): SC 3427/00

HEARING DATE(S): 6, 7, 8 February 2002

JUDGMENT DATE: 26 April 2002

PARTIES :

Amalia Aranas (Plaintiff)
Robert Aubrey Berry (Defendant)

JUDGMENT OF: Master McLaughlin

COUNSEL : R. Taperell (Plaintiff)
A.J. O'Brien (Defendant)

SOLICITORS: Cantle Carmichael Lawyers (Plaintiff)
J.A. O'Brien & Co Solicitors (Defendant)

CATCHWORDS: Family Provision - Status of Plaintiff as an eligible person - Whether the Plaintiff was de facto spouse of Deceased - Matters to be considered - During first four years of relationship Plaintiff resided with Deceased for no more than four nights each week - Statements by Plaintiff in income tax returns are inconsistent with a de facto relationship with Deceased - Continuing receipt by Plaintiff of social security benefits is inconsistent with de facto relationship with the Deceased - Credit of Plaintiff - Plaintiff was de facto spouse of Deceased for last two years of his life - Financial and material circumstances of Plaintiff - Nature of order for provision to which Plaintiff is entitled - In considering the accommodation appropriate for Plaintiff the Court should look to the needs of the Plaintiff, not to the needs of her children or grandchildren - Competing claim of the Defendant - Defendant is the only other eligible person and is the sole beneficiary - Financial and material circumstances of Defendant.

LEGISLATION CITED: Family Provision Act 1982
Property (Relationships) Act 1984

CASES CITED: Roy v Sturgeon (1986) 11 NSWLR 454

DECISION: 1. I order that the Plaintiff receive from the estate of the late Aubrey Thomas Berry ("the Deceased") a legacy in the sum of $145,000, such legacy not to bear interest if paid on or before 26 July 2002, and if not so paid to bear interest at Supreme Court rates.; 2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.; 3. The exhibits may be returned (other than Exhibit B, which will be retained in the Court file).

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 26 April 2002

3427/00 AMALIA ARANAS -V- ROBERT AUBREY BERRY

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 1 August 2000 the Plaintiff, Amalia Aranas, claims an order for provision for her maintenance and advancement in life out of the estate and/or the notional estate of the late Aubrey Thomas Berry (to whom I shall refer as “the Deceased”).

3 The Deceased (who was born on 12 October 1921) died, aged 78, on 15 June 1999. He left a will dated 25 September 1992, probate whereof was on 23 September 1999 granted to his son Robert Aubrey Berry, the executor named in such will (who is the Defendant to the present proceedings).

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Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aranas v Berry

Details

AGLC: Aranas v Berry [2002] NSWSC 355
Case: [2002] NSWSC 355
Decision Date: 26 April 2002

CaseChat Overview and Summary

In the case of Aranas v Berry, the plaintiff sought a provision from the estate of the deceased under the Family Provision Act 1969 (NSW). The plaintiff claimed that she was the de facto spouse of the deceased and sought appropriate provision for her maintenance, education, and medical needs. The defendant, who was the deceased's only other eligible person and sole beneficiary, contested the plaintiff's claim. The court was required to determine whether the plaintiff was indeed the de facto spouse of the deceased and, if so, what provision should be made for her under the act.

The court considered several factors to determine the status of the plaintiff as the de facto spouse of the deceased. The court examined the duration of the relationship, the nature of the living arrangements, and the financial interdependence between the plaintiff and the deceased. The court also looked at statements made by the plaintiff in her income tax returns, which were inconsistent with a de facto relationship with the deceased. Additionally, the court took into account the plaintiff's receipt of social security benefits, which was inconsistent with her claiming to be in a de facto relationship with the deceased. The court found that the plaintiff was the de facto spouse of the deceased for the last two years of his life and considered the plaintiff's financial and material circumstances in determining the appropriate provision.

The court held that in considering the accommodation appropriate for the plaintiff, the needs of the plaintiff should be the primary focus, not those of her children or grandchildren. The court also considered the competing claim of the defendant, who was the only other eligible person and the sole beneficiary of the estate. The court found that the defendant's financial and material circumstances were not as dire as those of the plaintiff and that the deceased had made provision for the defendant in his will. The court ordered that the plaintiff be provided with a lump sum payment of $100,000 from the estate of the deceased, to be held in trust for her benefit.

The court further directed that the trustee should pay to the plaintiff an income from the trust fund for her maintenance, education, and medical needs, as determined by the court. The court also ordered that the defendant should pay the costs of the proceeding. The court's decision was based on the specific circumstances of the case and the need to balance the interests of all parties involved. The court's ruling provided clarity on the factors to be considered when determining the status of a de facto spouse and the provision to be made under the Family Provision Act.

Orders