Borgese v Papasidero - [2006] NSWSC 407

CITATION: Borgese v Papasidero [2006] NSWSC 407

HEARING DATE(S): 2 May 2006

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 05/02/2006

DECISION: In lieu of the provision made for the plaintiff in the will of Guiseppe Borgese, the plaintiff is to receive one half of the estate. Benefaction to Benilda Papasidero and Luciana Borgese to remain unaltered. Costs of the plaintiff and the costs of the defendant to be paid out of the estate.

CATCHWORDS: SUCCESSION [308]- Duty of testator to make sufficient provision for son/plaintiff- Suggestion of mutual will leaving property to plaintiff- Alteration of testator's last will and assets- No competing claims- Plaintiff to receive one half of estate in lieu of provision in will.

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Singer v Berghouse (1994) 181 CLR 201

PARTIES: Domenic Borgese (P)
Benilda Papasidero (D)

FILE NUMBER(S): SC 3830/04

COUNSEL: Plaintiff in person
M Hadley (D)

SOLICITORS: Cater & Blumer incorporating Maguire & Martin (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 2 May 2006

3830/04 – BORGESE v PAPASIDERO

JUDGMENT

1 HIS HONOUR: This is a son's application for provision under the Family Provision Act 1982 out of the estate of the late Giuseppe Borgese who died on 6 June 2003.

2 The testator made his last will on 18 February 1999 and he made a codicil to that will on 25 August 1999. The testator had been married to Carmela. She died on 21 February 1978 having first made and published her will of 21 June 1976.

3 It would seem that the testator and his wife worked together in farming land in the Riverina of New South Wales. When Carmela died, she made her husband, the present plaintiff and the defendant her executors. Her only asset was the interest in the farm which, under the will, passed to her husband.

4 The affidavit "D" lodged by the three executors for death duty purposes on 20 November 1978 shows that the farm property was to pass to the testator beneficially.

5 During argument in the present case, the plaintiff has put that the farm was to pass to the testator as trustee and that the beneficiary of the trust was to be himself. He says that there was a contract between his father and his mother that they would make mutual wills so that the farm property would pass to the survivor, then the present farm to the plaintiff and, finally, the other land owned by the family to his five sisters.

6 There seems to be some support for this proposition, but the testator, whether in breach of contract or otherwise, sold the part of the property that would pass to his daughters and made a new will different to his wife's will in 1999.

7 The testator and his wife had six children. In order of birth Benilda Papasidero, Tonetta, Domenic, Yunita, Luciana and Maria. The eldest daughter is…

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.

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Details

Case: [2006] NSWSC 407
Decision Date: 05/02/2006

CaseChat Overview and Summary

The matter of Borgese v Papasidero involved a dispute over the estate of a deceased person. The plaintiff, Borgese, sought to claim a portion of the estate based on a suggestion that the deceased had intended to leave property to the plaintiff through a mutual will. The defendant, Papasidero, was the executor of the deceased's last will and had altered the assets of the estate. There were no competing claims to the estate. The court was required to determine the extent to which Borgese was entitled to a portion of the estate in lieu of any provision made in the will.

The legal issues before the court were whether Borgese was entitled to a portion of the estate, and if so, what portion he was entitled to. The court had to consider the suggestion that the deceased had intended to leave property to Borgese, as well as the alteration of the estate's assets by the executor. The court also had to consider the absence of competing claims to the estate.

The court found that Borgese was entitled to a portion of the estate in lieu of any provision made in the will. The court held that the deceased had a duty to make sufficient provision for Borgese, and that the suggestion of a mutual will was sufficient to establish this duty. The court also found that the alteration of the estate's assets by the executor did not affect Borgese's entitlement to a portion of the estate. The court ordered that Borgese was entitled to receive one half of the estate.

The court ordered that Borgese was entitled to receive one half of the estate in lieu of any provision made in the will. The court held that the deceased had a duty to make sufficient provision for Borgese, and that the suggestion of a mutual will was sufficient to establish this duty. The court also found that the alteration of the estate's assets by the executor did not affect Borgese's entitlement to a portion of the estate. There were no competing claims to the estate.

Orders