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NSW Supreme Court looks at family relationship details to decide court costs

In order to sort out the amounts that would be paid to several parties involved in a family provision claim, the New South Wales Supreme Court conducted an in-depth review of the relationships between those who were named in the document.

The issue started when plaintiff Enzo Jair Ploder filed a provision two years ago, claiming that he deserved a piece of the deceased Fiona Rita Garcea’s estate. To determine if the relationship between the two people – who were not married – warranted a portion of what was left in her will, the court looked at several factors.

The court stated that it would look into the nature of the relationship, the duration of the relationship and the size of the estate that Ms Garcea left behind. The court also stated that it was likely that the amount of money that could potentially be given to Mr Ploder would depend on the intimacy between the two people.

Defining the three measures

In pursuing the exact details of the nature of the relationship, the court hoped to learn whether they were engaged or had discussed being engaged before Ms Garcea’s death.

Details about the sexual relationship between the two could also be used to provide either support or opposition to Mr Ploder’s argument. This included personal letters written by Ms Garcea that suggested considerable levels of intimacy.

Deciding how long they had been living together was another point of contention, with varying accounts and witnesses alleging Mr Ploder’s car was not outside Ms Garcea’s house for the duration he claimed. It is clear, however, that at some point in time, Ms Garcea moved into the plaintiff’s home, as several affidavits were signed confirming this.

The court also took into consideration the size of the estate, and whether or not the total amount included a lump sum of $100,000 that was a gift that was given to the deceased by another member of Garcea’s will.

The defendant in the case, who was a part of Ms Garcea’s estate, made several accusations that in the end the court said were not substantial enough to keep Mr Ploder from receiving a portion of the estate.

“Having analysed the evidence in some detail above, I am left in no doubt whatsoever that the appropriate costs order is for the defendant to personally pay the plaintiff’s costs,” the judge ordered.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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