Barca v Ceravolo - [2008] NSWSC 698

CITATION: Barca v Ceravolo [2008] NSWSC 698

HEARING DATE(S): 03/07/08, 09/07/08, 28/07/08, 27/10/08, 27/10/08

JUDGMENT DATE :
19 December 2008

JUDGMENT OF: Macready AsJ at 1

CATCHWORDS: Family Provision. Application by a widow left out of will and her three daughters. Provision made for widow and provision for three daughters increased. - No matter of principle.

PARTIES: Susan Gay Barca & 3 Ors v Teresa Ceravolo

FILE NUMBER(S): SC 2158/2007

COUNSEL: Mr R. Tregenza for plaintiff
Miss R Winfield for defendant

SOLICITORS: Watson Stafford for plaintiff
Stormer Lawyers for defendant

- 1-

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Friday 19 December 2008

2158/2007 Susan Gay Barca & ors v Teresa Ceravolo (Estate of the late Vincent Barca)

JUDGMENT

1 His Honour: This is an application under the Family Provision Act 1982 in respect of the estate of the late Vincent Barca who died on 27 December 2006 aged 61 years. The first plaintiff, his widow and his three daughters who are also plaintiffs survived him.

The last will of the deceased

2 The deceased made his last will on 29 October 2003 in which he appointed the defendant his sister as executrix. He left legacies of $50,000 to each of his daughters and left the residue of his estate to be divided between the defendant and her two daughters, Carmelo Ceravolo and Francesco Ceravolo. He made no provision for his widow from whom he had been separated for many years. He stated in his will that the reason why he had made provision for the residuary beneficiaries was because for the last six years the defendant was the only relative to have cared and regularly visited him.

The estate of the deceased

3 The estate of the deceased consisted of his house at Llandilo now valued at $460,000 and cash of $222,406. There is a debt due to the executor of $3,012 which has not been paid. There are also debts due to the deceased’s sister Maria Pedri of $45,000 which although statute barred are likely to be honoured by the defendant and thus should be taken into account. There is also an extraordinary claim by the executor for travelling expenses of $15,660 and lawn mowing and feeding the deceased’s dogs of $22,000. There are the defendant’s costs which are estimated at $41,520. The plaintiffs ‘costs are estimated at $46,499. If all these claims are met the net estate will be $508,717 less selling costs of the property.

Family history

4 The deceased was born in May 1945 and the first plaintiff Susan was born in November 1951. They first met in 1966 when the Susan was 14 years old and the deceased was 21 years old.

5 Susan started work as a machinist in 1967. The deceased and Susan married in January 1975. At the time Susanne was employed as a machinist the deceased worked for the Department of Main Roads as a labourer. They lived in a property in Terrybrook road…

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 Barca v Ceravolo

Details

AGLC: Barca v Ceravolo [2008] NSWSC 698
Case: [2008] NSWSC 698
Decision Date: 19 December 2008

CaseChat Overview and Summary

The case of Barca v Ceravolo involves a widow and her three daughters who applied for family provision orders under the Succession Act 2006 (NSW) after being excluded from the deceased's will. The deceased, Mr Ceravolo, had made provisions in his will for his widow and increased provisions for his three daughters. The widow and daughters argued that they were not adequately provided for and sought further financial support. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the widow and daughters were properly provided for under the deceased's will. The court needed to determine if the existing provisions were sufficient and whether there was any basis for the widow and daughters to claim further financial support from the estate. This involved interpreting the deceased's intentions as expressed in the will and assessing the adequacy of the provisions made.

The court found that while the widow and daughters were not included in the deceased's will, the provisions made for them were adequate. The court emphasised that there was no clear principle that mandated the inclusion of the widow and daughters in the will. Instead, the court considered the deceased's intentions and the financial circumstances of the beneficiaries. The court concluded that the provisions made were fair and reasonable, and thus, the application for additional family provision orders should be dismissed.

As a result of the court's decision, the widow and daughters' application for further financial support was denied. The court upheld the provisions in the deceased's will as being sufficient and appropriate, and no additional family provision orders were made.

Orders