Barukzai v Rizzo - [2025] VSC 308

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S ECI 2020 04000

IN THE MATTER of Part IV of the Administration and Probate Act 1958

-and-

IN THE MATTER of the Estate of Sylvia Annette Rizzo (also known as SYLVIA ANTONIETTA RIZZO)

BETWEEN:

CARMEN BARUKZAI	Plaintiff
v
PHILLIP JOSEPH RIZZO (who is sued as the executor of the estate of SYLVIA ANNETTE RIZZO, also known as SYLVIA ANTONIETTA RIZZO)	Defendant

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JUDGE:	Barrett AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2025
DATE OF JUDGMENT:	30 May 2025
CASE MAY BE CITED AS:	Barukzai v Rizzo
MEDIUM NEUTRAL CITATION:	[2025] VSC 308

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TESTATOR’S FAMILY MAINTENANCE – Application under Part IV of the Administration and Probate Act 1958 (Vic) for family provision order by adult daughter out of mother’s estate – Where deceased made no provision for adult daughter in her Will – Moral duty owed by mother to make provision for an adult daughter in need – Applicant in poor health, in receipt of government benefits, limited employment capacity and financial resources – Needs of other beneficiary unknown – Estrangement – Where daughter and deceased estranged for short period – Whether estrangement is a disentitling factor – Whether conduct of adult daughter responsible for estrangement – Defendant did not participate in proceeding – What amount constitutes adequate provision for the proper maintenance and support of the plaintiff – Held: Order made for provision to the plaintiff under Part IV of the Administration and Probate Act 1958 (Vic) ss 90, 91, 91A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M J Latham
For the Defendant

TABLE OF CONTENTS

Introduction

The evidence

Legal principles

Consideration

Did the deceased have a moral duty to provide for the plaintiff?
The terms of the Will and the deceased’s reason for excluding the plaintiff
Estrangement
Financial support

The size and nature of the estate
The plaintiff’s age, circumstances, health, finances, employment and future prospects
The extent to which the deceased owed any obligations or responsibilities to the plaintiff or defendant, and the extent to which the deceased was providing any maintenance to them
The defendant’s health, financial circumstances, and the effect that a family provision order would have on the amounts received from the deceased’s estate by him.

Conclusion

HIS HONOUR:

Introduction

Sylvia Annette Rizzo (also known as Sylvia Antonietta Rizzo) (‘deceased’) died on 22 January 2020. She was survived by her two adult children; her daughter, Carmen Rizzo (formerly known as Carmen Barukzai) (‘plaintiff or Carmen’), who was born in 1979, and her son, Phillip Joseph Rizzo (‘defendant’), who was born in 1981 and is the executor and trustee of the deceased’s estate.
The plaintiff applies for an order that provision be made for her from the deceased’s estate for her proper maintenance and support, pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (‘Act’).
The deceased made her last will on 19…

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 Barukzai v Rizzo

Details

AGLC: Barukzai v Rizzo [2025] VSC 308
Case: [2025] VSC 308
Decision Date: 30 May 2025

CaseChat Overview and Summary

In the matter of Barukzai v Rizzo, the applicant, an adult daughter, sought a family provision order from her deceased mother’s estate under Part IV of the Administration and Probate Act 1958 (Vic). The mother had made no provision for the applicant in her will, leaving the estate to other beneficiaries. The applicant, who was estranged from her mother for a short period, argued that her mother owed her a moral duty to make provision for her in need, given her poor health, reliance on government benefits, limited employment capacity, and financial resources. The defendant, who did not participate in the proceedings, left the court to determine the matter based on the applicant's evidence.

The primary legal issue was whether the estrangement between the applicant and her mother constituted a disentitling factor, and if so, whether the estrangement was attributable to the applicant’s conduct. Additionally, the court needed to determine what amount would constitute adequate provision for the applicant’s proper maintenance and support. The court examined the statutory criteria under ss 90, 91, and 91A of the Administration and Probate Act 1958 (Vic) to decide the application. It found that the estrangement did not disentitle the applicant, as it was brief and not due to her conduct. The court also considered the applicant’s circumstances and needs, concluding that the estate had sufficient resources to provide adequate maintenance and support for her.

The court ruled in favour of the applicant, finding that the mother’s moral duty to provide for her in need was not discharged by the will. The court held that the estrangement did not bar the applicant from making a successful claim and that the applicant’s circumstances justified a family provision order. The court ordered a provision from the estate to adequately support the applicant, reflecting her needs and the resources available in the estate. This decision underscores the court's duty to consider the moral obligations of testators and the rights of beneficiaries under the statute.

Orders