Supreme Court
New South Wales
Medium Neutral Citation: Barbanera v Barbanera & Ors; Estate of the late Antonio Barbanera [2017] NSWSC 357 Hearing dates: 12 & 13 December 2016 Date of orders: 05 April 2017 Decision date: 05 April 2017 Jurisdiction: Equity Before: Slattery J Decision: Summons dismissed. Issue of costs reserved. Parties directed to attempt to resolve the issue of costs.
Catchwords: SUCCESSION – family provision – Succession Act, Chapter 3 – adult son, one of four children, left out of will – whether adequate provision made for adult son – whether the plaintiff’s wealth sufficient that he has not been left without adequate provision for his maintenance, education or advancement in life and further provision need not be made for him – whether adult son cut himself off from deceased, or engaged in conduct estranging himself from the deceased. Legislation Cited: Succession Act 2006 (NSW), Chapter III Cases Cited: Drury v Smith [2012] NSWSC 1067
Evans v Levy [2011] NSWCA 125
Singer v Berghouse (No. 2) (1994) 181 CLR 201Category: Principal judgment Parties: Plaintiff: Giovanni Barbanera
First Defendant: Pietro Barbanera
Second Defendant: Nunzia Brunetti
Third Defendant: Trustee of the Estate of the Late Angela BouyioukosRepresentation: Counsel:
Plaintiff: J. Phillips SC; R. Weaver
Defendants: K. MorrisseySolicitors:
Plaintiff: Greg Walsh & Co Solicitors
Defendant: Serio & Associates
File Number(s): 2015/303334 Publication restriction: No
Judgment
-
Antonio Barbanera died on 31 October 2014. Antonio’s wife Maria had died in November 2009. They had both been born in the early 1930s in Catania in Sicily, migrated to Australia and were married for over 50 years.
-
Antonio was survived by four children, the plaintiff, the eldest, Giovanni (John), born in 1963, Nunzia Brunetti (Nancy) born in 1969, Pietro (Peter) born in 1973 and Angela Bouyioukos (Angela) born in 1966.
-
Angela died in April 2015 and is survived by her husband, Nick Bouyioukos and their only child, Giuliana.
-
Maria was the sole beneficiary under Antonio’s last will dated 23 April 2008, with a gift over to three of the children, Angela, Nancy and Peter, were she to pre-decease Antonio. Maria died before Antonio, in 2009.
-
John was excluded from his father’s will. John brings these proceedings under Succession Act, Chapter 3 for provision out of Antonio’s estate.
-
Antonio’s will appointed Peter and Nancy as his executors. The executors resist John’s claim on two principal grounds: (1) he had deliberately estranged himself from his father, and indeed his mother, for most of his life, causing them both great distress; and (2) he has no need for provision out of the deceased’s estate, because of his and his wife’s existing personal wealth.
-
As the parties often referred to one another in the course of these proceedings by their first names the Court will, without intending any disrespect to the members of the family, do the same in these reasons.
-
Mr J. Phillips SC of counsel leading Mr R. Weaver appears for the plaintiff in the proceedings. Mr K. Morrissey of counsel appears for…
Continue reading Barbanera v Barbanera
Sign in free to access the full text
- AGLC
- Barbanera v Barbanera [2017] NSWSC 357
- Case
- [2017] NSWSC 357
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the plaintiff's wealth was sufficient such that he had not been left without adequate provision for his maintenance, education, or advancement in life, and therefore, no further provision need be made for him. Additionally, the court needed to determine if the son had effectively cut himself off from the deceased or engaged in conduct that estrange him from the deceased.
The court considered the provisions of the Succession Act and the relevant case law, examining the financial status of the plaintiff and the relationship between the son and the deceased. It found that the plaintiff had sufficient wealth, and thus, he had not been left without adequate provision. Furthermore, the court determined that the son had engaged in conduct that estranged him from the deceased, thereby justifying his exclusion from the will.
As a result, the court dismissed the son’s claim for further provision from the estate. The decision was based on the plaintiff's financial independence and the son's estrangement from the deceased.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.