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Bevilacqua v Robinson

Bevilacqua v Robinson

Case [2008] NSWSC 463 20 May 2008

De Facto Relationship

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CITATION: Bevilacqua v Robinson [2008] NSWSC 463

HEARING DATE(S): 2 & 5 May 2008

JUDGMENT DATE :
20 May 2008

JURISDICTION: Equity

JUDGMENT OF: Jagot AJ

CATCHWORDS: FAMILY PROVISION - application by de facto partner of deceased - relatively short relationship - de facto partner benefited from deceased's bounty during relationship - other claims on deceased's bounty - de facto partner had not established inadequate provision for his proper maintenance, education and advancement in life.

LEGISLATION CITED: Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: Ernst v Mowbray [2004] NSWSC 1140
Gollege v Donnachie [2005] NSWSC 16
Hardiman-Burt v Gordon [2008] NSWSC 395
Hyland v Burbidge [2000] NSWSC 12
Kay v Archbold [2008] NSWSC 254
Mayfield v Lloyd-Williams [2004] NSWSC 419
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Samsley v Barnes [1990] NSWCA 161
Singer v Berghouse (No 2) (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191
Walker v Walker (Unreported, Supreme Court of New South Wales, Young J, 17 May 1996)

PARTIES:
PLAINTIFF
Gaetano Bevilacqua
DEFENDANT
Samantha Jennifer Robinson - Estate of Jennifer Margaret Robinson

FILE NUMBER(S): SC 4058 of 2007

COUNSEL: Mr M K Meek with Ms Despina Laftsidis, plaintiff
Ms Louise Goodchild, defendant

SOLICITORS: Russell-McLelland Brown Lawyers, plaintiff
Ritchie & Associates, defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Jagot AJ

20 May 2008

4058 of 2007 GAETANO BEVILACQUA v SAMANTHA JENNIFER ROBINSON

JUDGMENT

1 HER HONOUR: By this application the plaintiff, Gaetano (Gary) Bevilacqua, sought an order for provision out of the estate of the late Jennifer Margaret Robinson (the deceased) under s 7 of the Family Provision Act 1982 (the Act).

Facts

2 The plaintiff is 56 years of age. He was the de facto partner of the deceased. They began living together in the deceased’s home at George Street, Penshurst in 2000 after first meeting in 1999. They lived together until the deceased’s death at age 54 on 3 August 2006. Accordingly, the plaintiff is an eligible person for the purposes of the Act. The deceased’s will was dated 29 February 2000, before the plaintiff moved into the deceased’s house. It makes no provision for the plaintiff. By her will the defendant left her estate to her three daughters from an earlier marriage, Samantha Gibson (now aged 28), Rebecca Hendricks (now aged 30), and Alexandra Robinson (now aged 20). The marriage ended in divorce a number of years before the plaintiff met the deceased.

3 Probate was granted on 15 December 2006.

4 There was some dispute between the parties about the assets of the estate. The dispute related to: - (i) the value of the Penshurst property (where a range of $540,000 to $580,000 is indicated in the property appraisal, with the plaintiff content to adopt the mid point of $560,000 and the defendant suggesting a value of $550,000), and (ii) certain distributions already made to the deceased’s daughters that the plaintiff described…

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 Bevilacqua v Robinson

Details

AGLC: Bevilacqua v Robinson [2008] NSWSC 463
Case: [2008] NSWSC 463
Decision Date: 20 May 2008

CaseChat Overview and Summary

The case of Bevilacqua v Robinson involved an application by a de facto partner seeking provision from the estate of the deceased. The deceased had a relatively short relationship with the applicant, during which the applicant benefited from the deceased's bounty. Other claims on the deceased's estate existed, including from family members. The court had to determine whether the applicant had established that the deceased had made inadequate provision for their proper maintenance, education, and advancement in life.

The primary legal issue before the court was whether the applicant, as the de facto partner of the deceased, was entitled to a provision from the deceased's estate under the Family Provision Act. The court examined the length and nature of the relationship, the extent of the benefits received by the applicant during the relationship, and the claims of other beneficiaries on the estate. The court also considered whether the deceased had made adequate provision for the applicant's proper maintenance, education, and advancement in life.

The court found that the relationship between the applicant and the deceased was relatively short and that the applicant had benefited from the deceased during the relationship. However, the court determined that the applicant had not established that the deceased had made inadequate provision for their proper maintenance, education, and advancement in life. The court found that other claims on the estate, including those from family members, were more compelling. Consequently, the court dismissed the applicant's claim for provision from the deceased's estate.

The court did not make any orders in favour of the applicant. The applicant's claim for provision from the deceased's estate was dismissed. The estate was to be distributed according to the deceased's will and the claims of other beneficiaries.

Orders