defendant. The amended summons is dismissed. The Court expressed a provisional view that costs should follow the event: the plaintiff should pay or bear his own costs; the defendant, as administratrix, should...
Key principles
A claim for family provision under s 59 of the Succession Act 2006 (NSW) fails at the threshold where the claimant, an eligible child, has been left an entitlement on intestacy...
A deceased's deliberate decision to die intestate or to leave an equal division among children is entitled to respect; the court must place itself in the position of the deceased...
Estrangement, while a relevant factor, does not automatically defeat a claim for provision; it is one factor among the matters to be weighed under s 60(2) (A Review of Applicable...
Prima facie, costs follow the event in family provision proceedings; where an administratrix successfully defends a claim, the court may award indemnity costs payable out of the...
Issues before the court
Whether the plaintiff, an eligible child, has been left without 'adequate provision for his maintenance, education and advancement in life' within...
Plain English Summary
The court dismissed the adult son's family provision claim. He was entitled on intestacy to about one third of a $1.1m estate. Although impecunious and a carer, he had not been left without adequate provision such that the court should order further sums, particularly given the deceased's apparent intention to divide her estate equally and the competing needs of his siblings. The court provisionally held costs should follow the event and that the defendant administratrix should receive indemnity costs charged against the plaintiff's share; the only formal order made was dismissal of the amended summons, with costs reserved.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,871 words · generated 25/06/2026
What happened
Antonietta Luca died intestate on 23 March 2016, leaving a single residential property in Blacktown valued at an agreed $1.1 million. Letters of administration were granted to her daughter, Diana Tripolone, who is the defendant in these proceedings (Introduction [1]). Under s 127 of the Succession Act 2006 (NSW) each of the deceased's three children, the plaintiff Robert Guiseppe Turch, the defendant Diana, and their sibling Franco, are prima facie entitled to a one third share of the estate (The Deceased's Estate [1]; s 127 summary).
Whether the deceased deliberately died intestate or adopted a deliberate testamentary scheme and what weight that should have in assessing a family...
What costs orders are appropriate where an eligible child's family provision claim is dismissed.
Whether estrangement from the deceased is determinative of a family provision claim.
Cited legislation
No linked legislation citations have been extracted yet.
The plaintiff, an adult son who had been estranged from the deceased for about 19 years, filed proceedings seeking an extension of time (which the defendant eventually consented to) and substantive family provision relief under s 59 of the Succession Act (Introduction [3]-[5]). At hearing the plaintiff abandoned an ambitious claim for substantially the whole estate and sought alternatively a legacy of approximately $660,000, or more modestly $450,000, on the asserted basis that he required funds to purchase a residence suitable to accommodate himself, his partner and to assist in caring for Uncle Mario (The Plaintiff's Claim [1]; Consideration of the Plaintiff's Case [1]).
All three children gave evidence, the defendant as administratrix and Diana having been close to and caring for the deceased, Franco being in financial need and resident overseas, and Robert living in Brisbane, unemployed, a carer, and asserting chronic back pain (The Factual Matrix [11]-[13]). The court assessed the case against the statutory tests in ss 59-60 of the Succession Act and concluded the plaintiff had not been left without adequate provision and that no further provision ought to be made. The amended summons was dismissed; the court gave a provisional view that costs should follow the event and that indemnity costs for the defendant as administratrix should be chargeable against the plaintiff's share, but reserved detailed costs orders (Conclusion [1]-[4]).
Why the court decided this way
The decision follows statutory analysis of the family provision regime and an application of established authorities about the court's task. The court identified the primary statutory gateways: (1) s 59(1)(c), the claimant must show he has been left without 'adequate provision for his maintenance, education and advancement in life'; and (2) s 59(2), the court must be satisfied that further provision 'ought' to be made. The matters listed in s 60(2) are to be consulted as material to this evaluation (A Review of Applicable Principles [1], [3]).
Lindsay J emphasised the correct vantage point: place the court in the position of the deceased, asking what a wise and just testator would have done in all the circumstances, having regard to present-day social conditions (citing In Re Allen, Bosch and the High Court in Scales, and authorities following that approach) (A Review of Applicable Principles [2]-[3]). The judge also noted that deliberate testamentary dispositions, including a deliberate intestacy, are entitled to respect (Slack v Rogan; Sgro v Thompson) and that findings of deliberate intestacy should not lightly be made but, if established, should weigh on the assessment (A Review of Applicable Principles [4]).
When applying those principles to the facts, the court highlighted three central points:
The plaintiff was an eligible claimant who would take a one third intestate share worth circa $330,000 (The Deceased's Estate [1]; s 127 summary).
The deceased had consulted a solicitor shortly before her death and the notes suggested an intention to divide the estate three ways and to have the defendant in charge of administration, conduct consistent with a deliberate decision to allow the children their intestate rights (The Deceased's Testamentary Intentions [1]-[3]).
The plaintiff's personal needs (impecuniosity, caring role, unemployment) were real, but did not demonstrate a shortfall in 'adequate provision' given his substantial intestate entitlement and the competing claims of an impoverished brother and a daughter who had cared for the deceased (Consideration of the Plaintiff's Case [5]-[9]).
Balancing these matters under s 60(2) led the judge to conclude the plaintiff had not established the threshold showing of inadequate provision, and even if he had, there was no foundation to conclude further provision ought to be made (Consideration [9]-[10]; Conclusion [1]).
Costs were considered in light of the ordinary rule that costs follow the event. The court expressed a provisional view that the plaintiff should bear his own costs and that the defendant, as administratrix, should be awarded indemnity costs payable from the estate and charged against the plaintiff’s share, reserving final costs for further submissions (Conclusion [2]-[4]).
Before and after state of the law
Before this decision, the legal framework for family provision claims remained the Succession Act, principally ss 59-60, informed by a well-established line of authorities about placing the court in the position of the testator and respecting deliberate testamentary arrangements (In Re Allen; Bosch; Pontifical Society v Scales; Goodman v Windeyer; Slack v Rogan). Re Estate Luce applies those pre-existing principles to a fact pattern where intestacy and family divisions are central. The decision reinforces these points:
Respect for a deceased's apparent decision to leave property equally among children (or to die intestate deliberately) remains significant; courts should not lightly disturb that division (A Review of Applicable Principles [4]; The Deceased's Testamentary Intentions [2]).
Being an eligible child with demonstrable need is not sufficient per se to displace a substantial intestate entitlement where the estate and competing claimants' needs do not justify disturbance (Consideration [5]-[9]).
After this decision, practitioners can take from the judgment that: (1) substantial intestate entitlements will often constitute 'adequate provision' for adult children, especially where the deceased's intentions point to equal division; (2) estrangement will be weighed but does not itself defeat a claim; and (3) courts are prepared to award indemnity costs to administratrices defending unsuccessful claims and charge those costs against an unsuccessful claimant’s beneficial share.
The decision therefore does not change the law but illustrates its application in circumstances of estrangement, modest estate comprising one asset, and competing needs among adult children.
Key passages with plain-English translation
Statutory framing (A Review of Applicable Principles [1]):
Quote: "To succeed on his claim... he must establish that... he has been left without 'adequate provision for his maintenance, education and advancement in life' ... and that (further) provision 'ought' to be made..."
Plain English: The claimant must show two things: (a) that what he has been left is not enough for his basic needs and advancement; and (b) that the court should, in fairness, make an order to give him more, after considering the statutory list of relevant matters.
On respect for intestacy and testamentary scheme (The Deceased's Testamentary Intentions [2]; A Review of Applicable Principles [4]):
Quote: "A deliberate scheme of testamentary dispositions by a capable testator is entitled to respect... A finding that a deceased person deliberately died intestate should not lightly be made but, if made, such a decision also is entitled to respect."
Plain English: If it is concluded the deceased intentionally arranged matters or chose not to make a will, the court should be cautious about overturning that intention; deliberate choices matter.
On the outcome (Consideration [9]; Conclusion [1]):
Quote: "In my opinion, the plaintiff's case fails at the threshold. He has not established... that he has been left without 'adequate provision'."
Plain English: The judge decided the claimant did not show he was failing to get what he reasonably needed from his mother's estate, so the claim fails at the first required test.
On costs (Conclusion [2]):
Quote: "Prima facie, costs should follow the event; the plaintiff should pay or bear his own costs; ... the defendant should be awarded costs on the indemnity basis; and costs payable by the plaintiff to the defendant should be charged against the plaintiff's beneficial interest in the estate..."
Plain English: Normally the loser pays. The judge's provisional position was that the claimant should pay his own legal costs, the administratrix should receive full (indemnity) costs, and her costs could be taken out of the estate and deducted from what the claimant would get.
What fact patterns trigger this precedent
This judgment will be persuasive where:
The estate is modest and comprises assets that produce a meaningful intestate share for each child (for example a $1.1m house giving each child roughly $330k).
An adult child claimant is living apart from the deceased, possibly estranged, and is seeking more than a substantial intestate share.
The deceased has indicated, shortly before death, an intention to divide her estate equally or to entrust administration to one child, or otherwise to leave matters to intestacy.
Competing beneficiaries include an impoverished sibling and a devoted carer child, which creates a need to weigh competing 'financial resources and needs' under s 60(2)(d).
The claimant's asserted needs are for housing or to support third parties rather than for basic maintenance.
In such circumstances, Re Estate Luce shows the court will carefully scrutinise whether the intestate share already provides 'adequate provision', and will not order augmentation merely because a claimant is impecunious or estranged.
How later courts have treated it
As this deep dive is based only on the judgment itself and the task requires grounding in the source text, there are no subsequent decisions reported within this judgment to cite. The judgment itself cites and applies prior authorities (In Re Allen; Bosch; Scales; Slack v Rogan; Sgro v Thompson; Camemik v Reholc etc.) to the facts. Practitioners should check subsequent case law and the NSW Court of Appeal for any appellate consideration of Re Estate Luce after 28 February 2020.
Still-open questions
The judgment resolves the claim on its facts, but leaves some broader issues for future clarification:
Thresholds for 'adequate provision' remain intensely fact-sensitive: how small an intestate share must be before courts find inadequacy in comparable fact patterns involving adult children with caregiving responsibilities.
The precise evidentiary standard for concluding a testator deliberately died intestate or deliberately arranged equal intestate divisions: Lindsay J treated the solicitor's notes as consistent with deliberate intestacy; future cases may further define when that inference is available on sparse notes and terminal illness contexts (The Deceased's Testamentary Intentions [1]-[3]).
The scope for indemnity costs charged against estate shares in family provision litigation: while the judge expressed a provisional view, final orders were reserved; future decisional law will clarify thresholds and principles for charging indemnity costs to beneficiaries' shares in succession contexts.
The role of third-party needs (here Uncle Mario) as a basis for provision to an adult claimant: the court declined to find a moral obligation owed to the uncle and rejected ordering diminution of siblings' shares to fund care. There remains scope for argument where third-party need is stronger, or where the deceased had provided for third-party dependants in life.
Practitioners dealing with family provision claims should therefore carefully assemble evidence on the deceased's testamentary intentions, the size of intestate shares, the claimant's specific needs and the competing needs of other beneficiaries. Re Estate Luce shows courts will give weight to equal-intestacy outcomes and will protect the expectations of other beneficiaries unless the claimant clears the statutory thresholds in ss 59-60.
Judgment (11 paragraphs)
[1]
Solicitors:
Plaintiff: Paul Denmeade & Co
Defendant: Reid Lawyers
File Number(s): 2018/00161546
[2]
INTRODUCTION
Antonietta Luca ("the deceased") died intestate on 23 March 2016, aged 73 years. Letters of administration of her estate were granted by this Court to the defendant (her daughter) on 14 May 2018.
The persons beneficially entitled to the deceased's estate, under Chapter 4 of the Succession Act 2006 NSW, are her three adult children; namely, the plaintiff (a son), the defendant (his sister) and their sibling, Franco.
By a summons filed on 23 May 2018, and amended on 19 December 2019, the plaintiff applies for: (a) an order, pursuant to section 58(2) of the Succession Act 2006, that the time within which he may make an application for family provision relief under Chapter 3 of the Act be extended up to and including the commencement of these proceedings; and (b) an order for family provision under section 59 of the Act.
As a child of the deceased, the plaintiff is an "eligible person" (within the meaning of section 57 of the Succession Act) entitled to make an application under Chapter 3 without any need to establish "factors warranting" the making of an application: section 59(1)(a) and (b).
During the course of the hearing of the proceedings, the defendant (through her counsel), announced that she consented to an extension of time as sought by the plaintiff, confining her opposition to the plaintiff's claims to opposition to a grant of provision. The focus for attention, then, is on the merits of the plaintiff's application for a family provision order.
The amended summons filed by the plaintiff seeks a grant of relief out of "the estate, or notional estate" of the deceased, but no party to the proceedings contends that the notional estate provisions of Chapter 3 of the Succession Act have been engaged. Counsel for the plaintiff disclaimed any claim to "notional estate".
All three of the deceased's children gave evidence at the final hearing of the proceedings. All three were cross examined. Franco's evidence was adduced by the defendant in her capacity as administratrix of the deceased's estate. He was not separately represented.
[3]
THE DECEASED'S ESTATE
It is agreed between the parties (as recorded in MFI D16, revised) that:
1. the estate of the deceased presently comprises only a residential property at Blacktown with an agreed value of $1.1 million.
2. the costs and disbursements of the parties up to the conclusion of the hearing, when judgment was reserved, are estimated to total $148,271.12, comprising the defendant's costs of $73,373.52 (assessed on the indemnity basis) and the plaintiff's costs of $74,897.60 (assessed on the ordinary basis).
3. of the defendant's costs, $45,373.52 has been paid and approximately $28,000 remains to be paid.
4. if the plaintiff's claim were to be dismissed with no order as to his costs, the net distributable estate would be approximately $1,000,072.
5. the plaintiff's costs are estimated to be $112,346.40 on the indemnity basis and $74,897.60 on the ordinary basis.
6. if each of the plaintiff's and defendant's costs were ordered to be paid out of the estate on the ordinary and the indemnity basis respectively, the net distributable estate would then be an estimated $997,102.40.
Under section 127 of the Succession Act (in Chapter 4 of the Act), each of the deceased's children is entitled to a one third share of her estate. Hence it is that the parties' submissions, for and against the plaintiff's claim for provision, proceeded upon a working assumption that, absent a grant of further provision, the plaintiff will receive approximately $330,000 from the deceased's estate, a one third share.
[4]
THE PLAINTIFF'S CLAIM
At the commencement of the hearing the plaintiff abandoned an ambit claim which, if successful, would have granted him substantially the whole of the estate. An alternative claim, pressed at the hearing, was that (in lieu of the sum of $330,000 or thereabouts) he receive a legacy of the order of $660,000 or, more modestly, $450,000.
On the plaintiff's case, the burden of any family provision relief granted to him should be borne substantially, if not wholly, by the defendant because: (a) Franco is not materially well off; and (b) the defendant is materially well off.
[5]
PARAMETERS OF THE CASE
The parameters of the case can be shortly stated.
Each of the deceased's children had a difficult childhood because she felt trapped in an unhappy marriage to their father and, when he discovered that she had been party to a long running adulterous affair, relationships within the family became acrimonious; protracted divorce and property settlement proceedings in the Family Court of Australia ensued, during the course of which the children's father suffered a disabling stroke, following which he died; and relationships between the deceased and her children, in varying degrees, were disrupted.
The relationship between the plaintiff and the deceased became one of estrangement, with the deceased greatly embittered towards the plaintiff because he took his father's part, against her, in the Family Court proceedings. There was no contact between the plaintiff and the deceased for about 19 years, between 1997 and the time of her death. He attributes his estrangement from the deceased to her, but that rings hollow. He was content to have nothing to do with her, and he made scant effort at reconciliation with her, for too long a period to lay blame at her feet alone.
His relationship with his mother contrasts with his siblings' relationships with her. As her daughter, the defendant endeavoured over a long period to remain in touch with her, became reconciled with her and nursed her in her dying days. Franco, the eldest child, reconciled with the deceased in 1999, lived with her thereafter for about two years before he moved to the United States of America in about 2002 (where he still lives); maintained regular contact with her by birthday cards, Christmas cards and telephone calls; and stayed with her when, in 2008, he returned to Australia for six weeks.
Each of the children experienced trauma associated with their parents' breakup. Each suffered a period of estrangement from the deceased.
Unlike his siblings, the plaintiff did not become (and he took no active steps to become) reconciled with her. He had nothing to do with her for nearly two decades. Nevertheless, she went to her death, apparently content for him to receive a one third share of her estate, an amount likely to be in excess of $300,000, subject to costs orders in these proceedings.
[6]
THE DECEASED'S TESTAMENTARY INTENTIONS, IF ANY
The plaintiff is entitled to a one third share of the deceased's estate on intestacy, by operation of law, in the absence of any will made by the deceased. Whether the deceased's testamentary arrangements came into being by accident or design is a moot point, informed by the fact that the deceased contemplated making a will when she visited a solicitor on 17 February 2016.
The solicitor's handwritten notes of her conference with the deceased evidence an intention on the part of the deceased to divide her estate three ways between her three children, perhaps providing for her sons to receive their entitlement by instalments, and emphatically wanting the defendant to be "in charge" of administration of her estate. The deceased was apparently tossing up between allowing her sons a third of her estate, or giving them a legacy of $300,000. The notes conclude with entries to the effect that further thought would be given to what, precisely, the deceased wanted to do. In the event, one is left with the impression that the deceased perhaps died intestate by design.
On a fair reading, the solicitor's notes confirm that the deceased (then suffering from cancer) was closer to the defendant than she was to either of her sons; that she did not see Franco because he was living in the USA; that she had "no contact" with the plaintiff and did not know his whereabouts; that she was advised by the solicitor that, if she left nothing to her sons or made provision for them only by instalments, they could make a claim against her estate; and she wanted the defendant to be in charge of her affairs, including defence of any claim against her estate.
[7]
A REVIEW OF APPLICABLE PRINCIPLES
To succeed on his claim for a family provision order the plaintiff must establish that, viewed from a current-day perspective, he has been left without "adequate provision for his maintenance, education and advancement in life" from the deceased's estate (Succession Act, section 59(1)(c)) and that (further) provision "ought" to be made for him from the estate (Succession Act, section 59(2)).
The concepts of "adequate" and "proper" embedded in section 59(1)(c) of the Succession Act are relative to the facts of the particular case: Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 at 19. Decision-making on such topics is fact sensitive.
In approaching the question for which section 59(2) of the Succession Act provides, the Court must endeavour to place itself in the position of the deceased, and to consider what she ought to have done in all the circumstances of the case, in light of facts now known, treating her as wise and just rather than fond and foolish (In Re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479; Scales Case (1962) 17 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and, generally, consulting the criteria set out in section 60 of the Act so far as they may be material. Whether the Court should make an order for family provision relief (and, if so, the nature and extent of any relief granted) are questions to be addressed in the context of the matters identified in section 60(2) of the Act as potentially material.
A deliberate scheme of testamentary dispositions by a capable testator is entitled to respect: Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at [127], approved in Sgro v Thompson [2017] NSWCA 326 at [1]-[2] and [83]-[87]. A finding that a deceased person deliberately died intestate should not lightly be made but, if made, such a decision also is entitled to respect.
In each case the criteria for which the Succession Act provides must be applied to the facts of the particular case without resort to normative generalisations.
Although in particular circumstances where an estate is large enough to accommodate it, provision of some security of tenure in a residence for a claimant might be called into play upon a consideration of the criteria for which the Succession Act provides, a deceased person is not generally obliged to provide an independent-living, adult claimant on his or her bounty with a dwelling or the means to support a third party: Camemik v Reholc [2012] NSWSC 1537 at [159].
[8]
THE FACTUAL MATRIX
With these general observations, closer attention must be turned to the particular facts of this particular case.
The unhappy relationships which mark the deceased's family appear to go back to the circumstances in which she and her late husband (the father of the plaintiff, the defendant and Franco) were married. Theirs was an arranged marriage, in Italy. The deceased evidently blamed her husband (Graziano) for taking her away from Italy, for bringing her to Australia. They were married in 1958, when the deceased was aged not quite 16, and shortly after their marriage they emigrated to Australia. Born in 1934, Graziano was nine years her senior.
In or about 1977 the deceased commenced a long running adulterous affair (with Vittorio). It came to the attention of Graziano in about 1981. Neither the affair nor Graziano's discovery of it brought harmony to the family.
The marriage between the deceased and Graziano was dissolved in December 1988 in proceedings that were commenced in the Family Court of Australia in 1985. The family law proceedings continued beyond the parties' divorce with ongoing disputation about property. In 1986 the deceased, with the reluctant acquiescence of Graziano, ordered the plaintiff and the defendant out of the family home. After their departure they were assisted by their father's brother, "Uncle Mario". By this time Franco had moved out of the family home in pursuit of an independent life.
After the breakup of her marriage to Graziano the deceased maintained her relationship with Vittorio. For a number of years up to about 2001, she lived with him as a de facto couple. Whether or not properly described as a "broken man", Graziano suffered the misfortune of a debilitating stroke in 1992 and died in September 1995.
At this distance, the Court is not well placed to delve too deeply into the rights and wrongs of the family law litigation. Each of the children appears to have been torn by divided loyalties and traumatised. In 1993, the plaintiff was appointed as his father's next friend in the family law proceedings to conduct those proceedings against the deceased. His active involvement in the proceedings was, on the evidence of the defendant, deeply resented by the deceased until her dying days. But the plaintiff's involvement in the proceedings was not necessarily, of itself, enough to explain the estrangement between mother and son. The defendant swore an affidavit in support of the plaintiff's appointment as next friend, although she and her mother became reconciled in time.
[9]
CONSIDERATION OF THE PLAINTIFF'S CASE
The plaintiff's family provision claim is based, in large measure (although not entirely), on a claim that he should be allowed sufficient funds from the deceased's estate to buy a house large enough to accommodate not only himself, but also his partner, Uncle Mario and the impedimentia that he and his partner have accumulated over the years. An alternative formulation of the same case is that he needs funds to purchase a house nearer to Uncle Mario's residence, to facilitate his care of Uncle Mario.
The plaintiff receives a Commonwealth pension as a carer for Uncle Mario, now a dementia patient in a retirement home.
Uncle Mario's precise medical condition and his life expectancy were not explored in the evidence beyond generalisations about his age (87 years), his dementia, his immobility and his need for assistance.
Uncle Mario was both a member of the deceased's extended family during her marriage to Graziano, and a friend to Graziano and her children in the breakup of the marriage. However, the long years after that time provide no foundation for a finding that the deceased owed a moral obligation to make provision (directly or indirectly) for Uncle Mario. Nor can it fairly be said that the defendant and Franco have a moral obligation to submit to diminution of their shares in the deceased's estate to enable the plaintiff (as he contends is his purpose) to assist Uncle Mario in whatever remains of a long life. The plaintiff's siblings complain that he has actively stood between them and any continuing relationship they might otherwise have had with Uncle Mario. Whether that be so or not, it is factually correct that the plaintiff has taken charge of a significant amount of Uncle Mario's wealth and applied it to the living expenses of himself and his partner, as well as the living expenses of Uncle Mario.
Accepting that the plaintiff is impecunious; that his lack of employment is, in part, a function of a bad back and, in part, a determination to make himself available as carer for Uncle Mario; and that his principal source of income is confined to a Commonwealth pension as his uncle's carer, it is nevertheless difficult to conclude that he has been left without "adequate provision for [his] proper maintenance, education or advancement in life" out of the estate of the deceased.
[10]
CONCLUSION
Having reviewed the statutory criteria for which sections 59-60 of the Succession Act provide, principles which govern an application of those criteria and the facts of the case, my determination is that the plaintiff's case fails at the threshold (for the reasons elaborated) and that, accordingly, his amended summons should be dismissed.
Prima facie, costs should follow the event; the plaintiff should pay or bear his own costs; as the deceased's administratrix, the defendant should be awarded costs on the indemnity basis; and costs payable by the plaintiff to the defendant should be charged against the plaintiff's beneficial interest in the estate of the deceased. There is no patent justification for imposing on the plaintiff's siblings the burden of the costs of his unsuccessful proceedings.
The parties addressed the question of costs in their final submissions, and invited the Court to express a provisional view about the nature of any costs orders to be made. This I have done.
Reserving to the parties an opportunity to be heard further on the question of costs, the only order to be made upon publication of this judgment is an order that the amended summons be dismissed.
[11]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 February 2020
The amended summons is dismissed. The Court expressed a provisional view that costs should follow the event: the plaintiff should pay or bear his own costs; the defendant, as administratrix, should be awarded costs on the indemnity basis and those costs should be charged against the plaintiff's beneficial interest in the estate. Final orders on costs are reserved and the only operative order on publication is dismissal of the amended summons (Conclusion [1]-[4]).
By the same token, estrangement between a deceased person and a claimant on his or her bounty is not necessarily an impediment to a grant of family provision relief, but is a factor to be taken into account in all the circumstances of the particular case: cf, Andrew v Andrew (2012) 81 NSWLR 656.
Unhealed hurts arising from their parents' failed marriage continue to this day to plague the children. The relationships between the plaintiff (on the one hand) and the defendant and Franco (on the other hand) are toxic, though the defendant and Franco remain on close familial terms. All that was on full display during the hearing of the proceedings. The plaintiff complained bitterly about an assault on his person, and damage to his property, by Franco at a time (not now easily identified) between about 1988 - 1993 or thereabouts. Franco was aggressively unrepentant. The plaintiff for his part insisted on offending the defendant by characterising her as wealthy. His contempt for her was reciprocated.
It would not be right, however, to attribute all disharmony within the family to historical discord between the deceased and Graziano. A running sore, as between the plaintiff and the defendant, is the fact that, in about 2008, the plaintiff borrowed from the defendant $5,000, never repaid. The defendant's perception of the plaintiff is that he is a grasping, greedy user of other people and their property.
It is neither necessary nor appropriate for the Court to enter upon controversies of this nature, or to be trapped by them. The criteria for which the Succession Act provides require a more dispassionate approach, as do the dictates of wisdom, justice and a regard for community standards.
With that in mind, attention must turn to the personal circumstances of the claimants on the deceased's bounty.
Franco was born in 1961 and is presently aged 59 years. He has been twice married, with two children (now adults) from his first marriage, and none otherwise. He has lived in the United States since about 2002. He has lost contact with his children. He currently lives in a platonic relationship with a friend. He is unemployed and in financial need.
The defendant (Diana) was born in 1965. She is presently aged 55 years. She left school at 16 and qualified as a hairdresser before her marriage in 1992. She and her husband have enjoyed a happy marriage, with material success. They have no children. She continues to work part-time as a hairdresser.
The plaintiff (Robert) was born in 1966. He is presently aged 54 years. He left school at 15. He has worked in a range of jobs, and conducted a variety of businesses, since that time. He is presently unemployed. As he tells his story, impediments to his obtaining gainful employment are chronic back pain and a need to act as a carer for Uncle Mario. He and his partner (also unemployed) are not formally married, but they have lived together as a couple for 22 years. They presently live in Brisbane. He has no children. His partner has an adult daughter by an earlier relationship, with a daughter of her own.
That is because he has been left an entitlement with an estimated value in excess of $300,000 and any provision for him out of the deceased's estate beyond that could be made only at the expense of his impecunious brother or the deceased's devoted daughter, a child favoured by the deceased.
This is not a case in which the plaintiff has been excluded from participation in his mother's estate.
Nor is it a case in which it can be said that the provision made for him by the deceased (by default or design) unfairly discriminated against him because, for example, he took his father's side in contested court proceedings. By leaving her children to their rights on intestacy, the deceased treated her children equally. She was not obliged (as he contends) to make provision for the plaintiff sufficient to enable him to purchase a residence. Still less was she obliged (as he contends) to make provision for him sufficient to enable him to acquire a residence large enough to house, not only him and his partner, but her former husband's brother, the aged uncle.
In my opinion, the plaintiff's case fails at the threshold. He has not established, for the purpose of section 59(1)(c) of the Succession Act, that he has been left without "adequate provision". Even if he has, there is no foundation for a finding, directed to section 59(2) of the Act, that provision "ought to be made for [his] maintenance, education or advancement in life" beyond the provision available to him on intestacy.
Upon a consideration of the factors to which section 60(2) of the Act directs attention (including section 60(2)(d), which directs attention to the "financial resources" and "financial needs" of competing claims on a deceased person's bounty), the plaintiff's claim fails to overcome the hurdles represented by the words "adequate" and "proper" in section 59(1)(c) and the word "ought" in section 59(2).