Borgese v Papasidero [2006] NSWSC 407 | Case summary

3830/04 - BORGESE v PAPASIDERO JUDGMENT 1 HIS HONOUR: This is a son's application for provision under the Family Provision Act 1982 out of the estate of the late Giuseppe Borgese who died on 6 June 2003. 2 The testator made his last will on 18 February 1999 and he made a codicil to that will on 25 August 1999. The testator had been married to Carmela. She died on 21 February 1978 having first made and published her will of 21 June 1976. 3 It would seem that the testator and his wife worked together in farming land in the Riverina of New South Wales. When Carmela died, she made her husband, the present plaintiff and the defendant her executors. Her only asset was the interest in the farm which, under the will, passed to her husband. 4 The affidavit "D" lodged by the three executors for death duty purposes on 20 November 1978 shows that the farm property was to pass to the testator beneficially. 5 During argument in the present case, the plaintiff has put that the farm was to pass to the testator as trustee and that the beneficiary of the trust was to be himself. He says that there was a contract between his father and his mother that they would make mutual wills so that the farm property would pass to the survivor, then the present farm to the plaintiff and, finally, the other land owned by the family to his five sisters. 6 There seems to be some support for this proposition, but the testator, whether in breach of contract or otherwise, sold the part of the property that would pass to his daughters and made a new will different to his wife's will in 1999. 7 The testator and his wife had six children. In order of birth Benilda Papasidero, Tonetta, Domenic, Yunita, Luciana and Maria. The eldest daughter is the executor. The plaintiff, the only son, was the third child. 8 Like many farming families with few assets, the evidence suggests that all the children worked hard on the farm with little or no remuneration. The girls worked up until the time of their marriages. One Luciana, is still unmarried and she still resides on the property. 9 The plaintiff also worked hard on the property, though he too got married and when he did get married, he moved off the property and with some help from the testator, obtained his own home. 10 The material before the Court is in many ways quite unsatisfactory. The plaintiff, although he had a solicitor at the beginning, has appeared in person and judged by the ordinary standards of litigants in person has fairly clearly presented his case. But he has not had the advantage of the legal training to know what is particularly relevant and what is irrelevant or to be able to present material in the best way. 11 The defendant has been represented by solicitor and counsel but the case presented is not in accordance with the way in which the majority of cases for a defendant are presented in this Court. 12 The plaintiff's sisters have each sworn an affidavit which simply says "I have prepared at the request of the solicitors a statement as to the facts and circumstances" and has annexed a statement which is usually in quite inadmissible form such as "we felt we had peace at last. We were able to relax and the family could come home again". I am quoting from Luciana's statement. This is just not acceptable. 13 What is required is that if evidence is to be presented to the Court by other members of the family, that evidence must be put in proper affidavit form and that some legally qualified person should go through the statements and put the evidence in the proper manner. However, the material provided by the plaintiff's siblings do not go to the point in the case at all. They do not deal with any competing needs and they merely give a history of the disputes in the family, rather a waste of time and effort. 14 The executrix's affidavit is again very incomplete. The executrix has a duty to place before the Court the full details of the estate, both as at the date of death and as at the date of hearing, details of the other beneficiaries and their circumstances, and exact figures as to the amount available for distribution. Now in the instant case, if it were not for Mr Hadley, for the defendant, telling me what his instructions were about various assets, and if it were not for the fact that a probate affidavit was tendered, I would have little idea at all as to what the estate was and who were the beneficiaries, and I still do not have a full picture of the worth of the estate. 15 I should now turn back to the will of the testator which again was not included in any affidavit but was tendered with probate as exhibit DX02. 16 The original will provided that there should be three shares given to Luciana plus one share for each grandchild so that the estate was split into 15 parts. The codicil provides that the estate is to be split, in the events that happened, into 18 parts. The plaintiff is to have three of those parts, Luciana three parts, and each of the 12 grandchildren one part, but, before the split, there is a gift of $2,000 to the executrix and a further $2,000 to Luciana. 17 The inventory attached to the probate showed that the land on which the farm was conducted is worth $300,000 but I am told that the parties agree that that is still its value and, I am told, that there were other assets totalling some $95,000. Included amongst those assets were about $10,000 worth of what were described as "ex partnership assets". The inventory said that the partnership was dissolved not later than February 1999. 18 Details as to the partnership appear in the estate's first affidavit. This affidavit is very bulky. It is single spaced without any spaces between the paragraphs. None of the pages are paginated and it exceeds the 50 page limit that was in force when it was filed on 20 October 2004, though some deputy registrar gave leave to file it. 19 It appears from that affidavit that in actual fact the partnership which was between the deceased, the plaintiff and the plaintiff's then wife has still not been finalised and that the accountant's last guess at the figures was that the testator owed the partnership and would have to contribute on its winding up some $1,600 and that is without the accountant's fees et cetera being taken into account. 20 Accordingly, we do not have a very exact estimate of what the estate is worth. It would seem that the farm property has been let out under some oral arrangement with the executrix on the basis that the person who farms it will get half the profits and the estate will get half the profits. The executrix in cross-examination told us that the profits were minimal and that they were going into a bank account that is used to fund the farm, but her obligation was to give full details to the Court of that, which she has not done. Then it would appear that as there are 18 shares in the estate, there is little option but to sell the farm and to split the proceeds. 21 The farm appears to be under some Crown Lands title whose sale will require approval from the Minister for Lands, but this is a bit unclear. We have no details at all as to how much the costs will be of selling the farm or what the market is like. 22 Despite all these defects, the solicitors have filed an affidavit that showed their costs are in excess of $50,000. Unfortunately, that includes the costs of an unsuccessful mediation, and the parties do live in the Riverina, but for the standard of material that has been presented, it does seem a very large amount of money. 23 The criticism is not all on the one side because as Mr Hadley has ointed out, the plaintiff has not really given us particularly sound and concise details of what his property is. He is not working. He is living on social services. He was living in a caravan park in Victoria. He was divorced and it would seem that when the matrimonial home was sold, he was given his share of about $100,000 and we are not quite sure what he did with that. It would appear he is living off capital. Again his ability to work is not completely clear. He says he is not looking for work and he has not worked for some time. 24 However, the estate is probably, as Mr Hadley put it, in the vicinity of about $300,000. Although one might justly complain of the lack of details, it would be criminal to stand this matter over for full details to be brought in because that would only further increase the costs of what the Court considers to be a small estate, a small estate being under $500,000. 25 If Mr Hadley's estimate is correct of $300,000 then a one 18th share is, on my calculations, $16,666. The plaintiff's share would thus be $50,000, Luciana's share $52,000, the executrix gets $2,000 in lieu of commission, and each of the grandchildren would get $16,666. The grandchildren include three of the plaintiff's own children. There is no evidence as to any particular need that any of the grandchildren have. 26 Mr Hadley says all the grandchildren are being cared for by their respective parents. They have no special needs. I am glad that that is so but I can assume that none of them have any particular health or other problems that might mean that there was some special reason for their gift to remain. There is also no claim by the plaintiff's sisters on the basis that they are not properly provided for by their husbands or by the will of the testator. 27 It is quite clear that the plaintiff feels very badly that he has been let down. He expected as the only son of the family that he would inherit the property. That was fuelled by comments that his mother made and the scenario which he believes to be true of mutual wills, yet that has been undone by what his father did in not complying with the mutual wills and selling off part of the property and in making his will the way he did. 28 On the other hand, the five daughters feel very, very strongly that what their father did was fair and just, and their father's wishes must be observed, and indeed it appears to be a great source of tension between members of the family that the plaintiff is challenging what his father did. 29 I do not need to go into detail as to the disputes in the family. It would appear that there had been many and that both the testator and the plaintiff had no problems with sticking up for what they considered to be their rights and, hence, came into conflict from time to time. In particular, there was an incident in 1999 where the testator got out his gun and shot the ground towards the plaintiff's car as the plaintiff drove towards him in a threatening manner. It is in this scenario that I have to assess whether, on the principles that have been set down in law, the plaintiff is entitled to relief under the Family Provision Act. 30 The way in which the Court approaches these problems was set out by the High Court of Australia in the case of Singer v Berghouse (1994) 181 CLR 201. It is a two stage approach. First, the Court must consider whether the testator has made proper provision for the plaintiff, and if it answers that question in the negative, then the Court proceeds to the second stage and that is asking what provision should the testator have made. 31 It is a difficult case and, I think, a borderline case. Here, we have, as Mr Hadley has put, a man who does not work, who has had a marriage settlement where he received $100,000, has left the family property somewhere between 10 and 15 years ago, and has been left one sixth of the estate. He has five siblings and not only has he been left one sixth of the estate, but his children between them have also been left a further one sixth. 32 Would the average member of the community consider that a person who has been made that benefaction has been properly provided for by the testator? I understand a person who gives the answer "yes" to that question but I think to do so would ignore the background. 33 The background is that the plaintiff had a real expectation that his parents would honour the promises that they had made to him. That was the sort of the thing that would have been expected in this family of Italian origin. He contributed up until at least 1991. He says he is still owed $70,000 for part of the crops of the partnership and it may be on the partnership accounts that monies will be paid to him or not paid to him one way or the other. He is not in a good situation. Mr Hadley says that part of that at least is due to his own choice of lifestyle but I do not think that is the whole of the answer. He has had to move away from his roots. He has had a divorce and he has very few assets. 34 If there had been some material to show that there were some competing claims then the plaintiff's situation would have been much harder. But I believe that in the scenario where he was made promises and where there are no competing claims, it was not an adequate provision to give him merely one sixth of the estate with some additional to his children, especially when one does not know whether his children are going to be people that he might otherwise have had to fund or not. 35 I then pass to the second part of the Singer v Berghouse. It is very difficult to assess what the testator should have done, but in my view, in the absence of competing claims, it would be appropriate for the plaintiff to be given half the estate. There is no way in which he can be given the whole of the estate without recognising the claims of the unmarried daughter, Luciana. The property will have to be sold and unless there is something I have not been told, no one would be able buy it who is a member of the family. So that in the end, some $300,000 will be produced. 36 It seems to me that a wise and just testator looking at a fund of $300,000 should have come to the view that the plaintiff should get half, that is about $150,000, that Luciana's $52,000 and the executors $2,000 should be left intact and the balance of $100,000 split between the 12 grandchildren. That is the order that I make. 37 Accordingly, the Court makes the following orders:

Borgese v Papasidero

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