Barbanera v Barbanera - [2017] NSWSC 357

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 201
Category: Principal judgment
Parties:
Plaintiff: Giovanni Barbanera
First Defendant: Pietro Barbanera
Second Defendant: Nunzia Brunetti
Third Defendant: Trustee of the Estate of the Late Angela Bouyioukos
Representation:
Counsel:

Plaintiff: J. Phillips SC; R. Weaver
Defendants: K. Morrissey

Solicitors:
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…

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 Barbanera v Barbanera

Details

AGLC: Barbanera v Barbanera [2017] NSWSC 357
Case: [2017] NSWSC 357
Decision Date: 05 April 2017

CaseChat Overview and Summary

The case of Barbanera v Barbanera involved a dispute between a father and his adult son regarding family provision claims under the Succession Act. The son, who was one of four children, had been excluded from the father’s will. The son argued that he had not been provided with adequate provision for his maintenance, education, or advancement in life, and that he should receive further provision from the estate. The father, in turn, argued that the son had cut himself off from him and engaged in conduct that estranged him from the deceased.

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