Boscolo v Australian Unity Trustees Limited as administrator of the estate of Mario Boscolo

[2023] WASC 391

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   BOSCOLO -v- AUSTRALIAN UNITY TRUSTEES LIMITED as administrator of the estate of MARIO BOSCOLO [2023] WASC 391

CORAM:   SOLOMON J

HEARD:   18, 19 & 21 APRIL 2023 WITH ADDITIONAL MATERIAL FILED 3 MAY 2023

DELIVERED          :   10 OCTOBER 2023

PUBLISHED           :   10 OCTOBER 2023

FILE NO/S:   CIV 1248 of 2021

BETWEEN:   MARIELLA BOSCOLO

Plaintiff

AND

AUSTRALIAN UNITY TRUSTEES LIMITED as administrator of the estate of MARIO BOSCOLO

First Defendant

VIRGINIA ELGO

Second Defendant

CAROLINE BOSCOLO

Third Defendant

JULIETTA BOSCOLO

Fourth Defendant

KARINA MCDOUGALL

Fifth Defendant

MARIO BOSCOLO

Sixth Defendant

ADRIAN BOSCOLO

Seventh Defendant

DAVID BOSCOLO

Eighth Defendant

Catchwords:

Family provision and maintenance - Application made by wife and three of seven children against estate of husband/father - Value of estate about $1.2million - Whether entitlement on intestacy makes adequate provision for the proper maintenance and support of wife and claimant children - Where wife and deceased were estranged and days from divorce being finalised - Assessment of needs of deceased's other non-claimant children - Impact of testator's poor conduct towards family - Large number of claimants - Competing moral claims - Significance of pension and social security entitlements

Legislation:

Administration Act 1903 (WA)
Family Provision Act1972 (WA)

Result:

Eighth defendant's application granted
Plaintiff's application dismissed
Second defendant's application dismissed
Third defendant's application dismissed

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance; Ms S Boscolo as McKenzie Friend (for adjournment applications)
First Defendant	:	Ms C Baggott
Second Defendant	:	Mr N Marsh
Third Defendant	:	Ms A Spencer
Fourth Defendant	:	In Person
Fifth Defendant	:	In Person
Sixth Defendant	:	No appearance
Seventh Defendant	:	In Person
Eighth Defendant	:	Mr P McGowan

Solicitors:

Plaintiff	:	In Person
First Defendant	:	Jackson McDonald
Second Defendant	:	JK Legal
Third Defendant	:	Templar Legal Pty Ltd
Fourth Defendant	:	In Person
Fifth Defendant	:	In Person
Sixth Defendant	:	No appearance
Seventh Defendant	:	In Person
Eighth Defendant	:	Haynes Leeuwin

Cases referred to in decision:

Anderson v Teboneras [1990] VR 527

Baird v National Mutual Trustees Ltd & Attorney General (Vic) (Supreme Court of Victoria, 22 November 1995, unreported, Harper J)

Bondelmonte v Blanckensee [1989] WAR 305

Cameron v Cameron [2009] SASC 27

Collicoat v McMillan [1999] 3 VR 803

Curnow v Curnow [2014] NSWSC 896

Curran v Harvey [2012] NSWSC 276

Devereaux-Warnes v Hall [No 3] [2007] WASCA 235

Finlay v Pereg [2022] NSWSC 32

Foley v Ellis [2008] NSWCA 288

Goodchild v James (1994) 13 WAR 229

Grey v Harrison [1997] 2 VR 359

Haskakis v Hatzopoulos [2015] NSWSC 1408

Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134

Kilkenny v Kilkenny [2018] WASCA 197

Lemon v Mead [2017] WASCA 215

McGeough v Blatchford [2019] WASC 454

Musasghi v Gebremariam [2022] WASCA 37

Poole v Barrow [2014] VSC 576

Re Allen; Allen v Manchester [1922] NZLR 218

Re Bull; Bentley v Brennan [2006] VSC 113

Re Jennings (dec'd) [1993] EWCA Civ 10; [1994] Ch 286

Re Russell [1970] QWN 22

Savic v Kim [2010] NSWSC 1401

Simon v Public Trustee Co Ltd [2005] NSWSC 223

Smith v Smith (1986) 161 CLR 217

Stone v Braun [2015] WASCA 103

Triplett v Triplett (unreported, WASC, Library No 2359, 16 March 1990)

Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

Wheat v Wisbey [2013] NSWSC 537

Williamson v Williamson [2011] NSWSC 228

SOLOMON J:

Overview

1. This proceeding concerns applications under ss 6(1) and 7 of the Family Provision Act 1972 (WA) (the Act) in the estate of Mario Boscolo.  Mario Boscolo was born on 16 January 1929 in Sottomarina, Italy and migrated to Australia after WWII.  He died intestate on 11 February 2018 at the age of 89.  On 17 July 2019, Letters of Administration were granted to Australian Unity Trustees Pty Ltd, the first defendant.[1]

   [1] Letters of Administration, 17 July 2019.

2. Mario Boscolo married five times and fathered eight children.[2]The parties to this litigation are his seven surviving children and his fifth wife, Virginia Elgo, to whom he was married at the time of his death.

   [2] Affidavit of Mariella Boscolo sworn 26 October 2020 [12], [15].

3. I shall refer to the deceased as Mr Boscolo, and his surviving wife as Ms Elgo.  In light of the commonality of the surname Boscolo among most of the other parties, I shall refer to Mr Boscolo's children by their first names.  No disrespect is intended by so doing.

4. The parties making a claim for further and better provision from Mr Boscolo's estate are:

   (a)the plaintiff, his daughter Mariella;

   (b)the second defendant, his surviving wife Ms Elgo;

   (c)the third defendant, his daughter Caroline; and

   (d)the eighth defendant, his son David.

5. The application commenced as a result of the plaintiff, Mariella, filing an application to commence proceedings under ss 6(1) and 7 of the Act out of time on 6 October 2020. Master Sanderson granted Mariella leave pursuant to s 7(2)(b) of the Act to commence proceedings out of time on 18 March 2021.[3]

   [3] Orders Master Sanderson, 6 October 2020.

6. Claims were then also made for further provision under the Act by Ms Elgo, Caroline and David. Mr Boscolo's daughters Julietta (the fourth defendant), Karina (the fifth defendant), and his son Adrian (the seventh defendant), participated in the proceedings. They did not seek further provision from Mr Boscolo's estate. Rather, their participation was directed, primarily, to preserving their existing statutory entitlement out of the estate of Mr Boscolo. The sixth defendant, Mr Boscolo's son Mario, took no part in the proceedings at all.

Intestacy

1. As Mr Boscolo died intestate, the entitlements of his estate are governed by the Administration Act 1903 (WA), and in particular, s 14 of that Act.[4]

   [4] This was the statutory entitlement as at the date of Mr Boscolo's death (and the granting of the Letters of Administration). The Act has since been amended to provide the surviving spouse with significantly increased entitlements. It was not contentious that the relevant statutory entitlement for the purposes of this application was the entitlement as at the date of death.

2. Section 14 contains a table which describes the entitlements depending on the circumstances of the intestate. Item 2 of the table sets out the entitlements where the intestate dies leaving both a spouse and children. Pursuant to subparagraph (b) of item 2, Ms Elgo as the surviving spouse of Mr Boscolo is entitled to the sum of $50,000 together with interest on that $50,000 at 5% per annum calculated from the date of death, and in addition, one third of the residue. The children of the intestate share equally in the balance of the estate. That means, in effect, that Ms Elgo is entitled to $50,000 plus interest at 5% per annum on that sum from the date of Mr Boscolo's death, together with 33.3% of the balance of the estate. The remaining 66.6% of the balance of the estate is shared equally between the seven children, entitling each of them to approximately 9.52% of the balance of the estate after the deduction of the $50,000 plus interest.

3. The parties who participated in the trial agreed, and I accept, that the overall practical effect of s 14 was that the statutory entitlements were as follows. Ms Elgo is entitled to 37% of the estate, and each of the children are entitled to 9% of the estate. Although the exact percentages were not precisely the same as those rounded figures, the parties were content to adopt those rounded percentages and I shall therefore adopt that course.

4. The statement of assets and liabilities which formed part of the first defendant's application for the grant of Letters of Administration disclosed that the net value of the estate was $1,466,477.[5]

   [5] Affidavit of Nicole Woodward affirmed 22 March 2023, "NTW-2".

5. On 15 March 2022, all beneficiaries of the estate (that is, Ms Elgo and the seven surviving children) consented to an interim distribution of $10,000 from the estate to the plaintiff and each of the second to eighth defendants.  The total funds distributed on an interim basis were $80,000.[6]

   [6] Affidavit of Nicole Woodward affirmed 22 March 2023 [10].

6. As at 22 March 2023, the first defendant held $1,159,985.48 on behalf of the estate.  The estate funds were held in cash.

7. The parties agreed that as at 22 March 2023, making various adjustments including the adding back of the $80,000 distributed on an interim basis, the notional net value of the estate was $1,230,488.[7]

   [7] MFI 1.

8. It was also agreed that, applying the statutory entitlements, inclusive of the interim distribution of $10,000 which was received by each of the parties, the dollar values of the entitlements were notionally as follows:[8]

   [8] MFI 2; ts, 21 April 2023, 320 - 321.

Party to proceedings	Statutory entitlement ($)	Statutory entitlement (%)
Mariella Boscolo (plaintiff)	111,129.97	9%
Virginia Elgo (second defendant)	452,578.19	37%
Caroline Boscolo (third defendant)	111,129.97	9%
Julietta Boscolo (fourth defendant)	111,129.97	9%
Karina McDougall (fifth defendant)	111,129.97	9%
Mario Boscolo (sixth defendant)	111,129.97	9%
Adrian Boscolo (seventh defendant)	111,129.97	9%
David Boscolo (eighth defendant)	111,129.97	9%
Total	1,230,487.98	100%

1. The effect of ss 6 and 7 of the Act is that a spouse or a surviving child of Mr Boscolo is entitled to make a claim that the operation of the law on intestacy is such that the estate failed to make adequate provision for their proper maintenance, support, education or advancement in life. It follows that Ms Elgo's claim is that her entitlement of approximately $452,000 failed to make adequate provision for her proper maintenance, support, education or advancement in life. It also follows that the claims advanced by Mariella, Caroline and David were that their entitlements of approximately $111,000 each, failed to make adequate provision for each of their proper maintenance, support, education or advancement in life.

Evidence

1. The evidence filed by the parties for the purposes of the substantive hearing of the applications was as follows:

   (a)Affidavit of Virginia Elgo sworn 23 April 2021 (Exhibit A);

   (b)Affidavit of Virginia Elgo sworn 26 July 2022 (Exhibit B);

   (c)Supplementary affidavit of Virginia Elgo sworn 13 December 2022 (Exhibit C);

   (d)Supplementary affidavit of Virginia Elgo sworn 3 March 2023 (Exhibit D);

   (e)Affidavit of Caroline Boscolo sworn 31 March 2022 (Exhibit E);

   (f)Second affidavit of Caroline Boscolo affirmed 24 June 2022 (Exhibit F);

   (g)Third affidavit of Caroline Boscolo sworn 11 August 2022 (Exhibit G);

   (h)Fourth affidavit of Caroline Boscolo affirmed 1 March 2023 (Exhibit H);

   (i)Fifth affidavit of Caroline Boscolo affirmed 6 April 2023 (Exhibit I);

   (j)Sixth affidavit of Caroline Boscolo affirmed 17 April 2023 (Exhibit J);

   (k)Affidavit of Julietta Boscolo sworn 26 April 2022;

   (l)Affidavit of Julietta Boscolo sworn 1 March 2023;

   (m)Affidavit of Julietta Boscolo sworn 10 April 2023 (Exhibit K);

   (n)Affidavit of Karina McDougall sworn 17 June 2022;

   (o)Affidavit of Karina McDougall sworn 13 March 2023;

   (p)Affidavit of Adrian Boscolo sworn 28 April 2022;

   (q)Affidavit of Adrian Boscolo sworn 17 April 2023 (Exhibit L);

   (r)Affidavit of David Boscolo sworn 30 May 2022 (Exhibit M);

   (s)Supplementary affidavit of David Boscolo sworn 10 August 2022 (Exhibit N);

   (t)Further supplementary affidavit of David Boscolo sworn 2 March 2023 (Exhibit O); and

   (u)Affidavit of Nicole Woodward (on behalf of the first defendant) affirmed 22 March 2023.

2. In addition to their affidavit evidence, the claimants, Ms Elgo, Caroline, and David gave oral evidence at trial and were cross examined.

3. In my assessment, each of the witnesses sought to give honest and credible evidence to the best of their ability from her or his own perspective.  No material credibility issues arose at the hearing.

Factual background

1. The affidavits set out the family history from the perspective of each of the deponents.  Whilst those perspectives differed in some respects, there was no real challenge to the material and relevant background facts which emerged clearly and in large part, despairingly, from the account given by each of the deponents.  The evidence established the following.

2. Mario Boscolo's first marriage was to Helene Danilevich from 1956 until they separated in about 1971 and divorced in January 1975.[9]  Two children were born from that relationship, namely:

   (a)Michael, born 13 June 1957; and

   (b)Caroline, born 8 October 1958.

   [9] Exhibit E [13].

3. Michael died in 2009 without a spouse or children.

4. Following his divorce from Ms Danilevich in January 1975, Mr Boscolo married Sylvia Stramsek (who then became Sylvia Boscolo), on 6 February 1976.  By the time they were married, Mariella had been born on 28 November 1973 and Julietta was born on 4 March 1976. 

5. Mr Boscolo and Sylvia were divorced on 28 August 1994.[10]  Together they had 6 children:

   (a)Mariella, born 28 November 1973;

   (b)Julietta, born 4 March 1976;

   (c)Karina, born 4 September 1977;

   (d)Mario, born 25 January 1980;

   (e)Adrian, born 24 March 1984; and

   (f)David, born 11 October 1991.[11]

   [10] Affidavit of Mariella Gina Boscolo sworn 26 October 2020 [14]; Exhibit A [13] - [14].

   [11] Affidavit of Mariella Gina Boscolo sworn 26 October 2020 [15].

6. It is unnecessary to descend into the detail of the family life that was the subject of much affidavit evidence.  It is sufficient to observe that the unchallenged evidence established a deeply dysfunctional environment endured by the children of Mr Boscolo.  Largely, it appears due to the conduct of Mr Boscolo, it was an atmosphere scarred by physical, verbal and emotional abuse, social and emotional isolation, deprivation and poverty.  On the evidence before the court, Mr Boscolo emerged as a narcissistic man quite capable of gross insensitivity and on occasion, intolerable nastiness or even wickedness.  The impact of the consequential familial dysfunction was, and remains, palpable.  It is to the great credit of each of Mr Boscolo's surviving children who participated in this proceeding that notwithstanding their experiences, they each exuded a resilience and civility that belies the harrowing distresses of their formative years.  An overview of those circumstances is sufficient.

7. Mario Boscolo and Sylvia Boscolo lived in Coogee, Western Australia with their children.  Sylvia Boscolo and the children moved to New South Wales in the early 1980s.  Mr Boscolo did not remain with the rest of the family in New South Wales, and returned to Perth, it appears, not long after the move to New South Wales.  Mr Boscolo made intermittent visits back to the family in New South Wales where he would stay with them for periods of time.  Those visits were not happy reunions; they were marred by emotional and other forms of distress and familial discord.  When Mr Boscolo was in Western Australia, his large family carried on with their lives in Sydney in a challenging environment of financial hardship.

8. Mario Boscolo and Sylvia Boscolo were eventually divorced in or about 1994 and subsequently engaged in acrimonious Family Court proceedings which were resolved in late 1995.[12]  In 1995, the Family Court granted sole custody of the youngest child, David, to Mr Boscolo with no access granted to Sylvia Boscolo or any of the other children.  At that time, David was only 4 years old.  There was no evidence as to the reason the court made those orders, although in his affidavit, David referred to an accident having occurred in his mother's care.[13]  At the age of 4, David went to Perth with Mr Boscolo and had no contact with the rest of the family for some years.[14]  It is not clear whether that was due to the effect of the orders of the Family Court or whether, as David recalled it in his affidavit, Mr Boscolo prevented David from communicating with his mother and siblings.[15]  David later commenced phone contact with the remainder of his family in about 2002.[16]

   [12] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [36] - [37].

   [13] Exhibit M [15].

   [14] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [40].

   [15] Exhibit M [21].

   [16] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [51]; Exhibit M [21].

9. Mr Boscolo's third marriage was to Rosilina Rodrigo on 11 January 1996.[17]  According to David's evidence, Mr Boscolo met Ms Rodrigo on a two-week trip to the Philippines.  David's evidence was that Rosilina Rodrigo left the marriage in 2001.  David's evidence was that approximately one year after Ms Rodrigo left, Mr Boscolo again went to the Philippines and some months later Perlita Orongan arrived from the Philippines and began living with Mr Boscolo and David.  Mr Boscolo and Perlita Orongan were married on 8 June 2004.  That marriage ended in divorce in 2008.[18]

   [17] Exhibit M [12].

   [18] Exhibit M [13].

10. Mr Boscolo married Ms Elgo in 2013 in circumstances I will describe below. 

11. Having provided that overview of the family background, I turn to consider the particular circumstances relating to each of the claimants. 

Mariella Boscolo

1. Mariella did not adduce any evidence at the trial.  It is necessary to summarise the circumstances that led to that outcome.

2. Mariella was originally represented in the proceedings by solicitors.  However, problems arose in respect of that representation.  The first firm of solicitors was replaced.  The second firm applied to come off the record.  On 18 August 2022, the Principal Registrar made orders allowing Mariella's then-solicitors to come off the record, observing that 'the relationship ha[d] broken down to such an extent that it would be in [Mariella's] interest to […] seek alternate legal representation'.[19]  At that hearing of 18 August 2022, the Principal Registrar allowed Mariella to be represented by her mother, Sylvia Boscolo.  The Principal Registrar emphasised to Sylvia Boscolo on that occasion that there were deadlines to be met and that if Mariella was going to be represented by new lawyers, that needed to be done as soon as possible.  The Principal Registrar foreshadowed that 'there's not going to be much tolerance to never ending extensions'.[20]

   [19] ts, 18 August 2022, 6.

   [20] ts, 18 August 2022, 10.

3. On 11 October 2022, the court asked the parties to provide availability for a five-day trial.  A further request was made of the plaintiff on 20 October 2022.  On that day, Sylvia Boscolo sent a letter to the court from a medical practitioner, Dr Loukakis.  Dr Loukakis advised that Mariella was 'unwell' and requested that the trial be deferred to be heard 'from March 2023'.  To accommodate Mariella's request, the trial was listed to commence on 18 April 2023. 

4. The matter was listed for directions before me on 2 February 2023.  In advance of that directions hearing, Sylvia Boscolo sent to the court a further letter from Dr Loukakis stating that due to her complex medical history, Mariella was unable to represent herself and was dependent on her mother Sylvia Boscolo as her primary carer.  Sylvia's communications were not copied to the other parties.

5. At that directions hearing, I allowed Sylvia Boscolo to represent Mariella.  I reiterated at the hearing that the trial was to proceed on 18 April and that if Mariella was to be represented, it would be necessary for her to arrange that 'very very soon'.[21]  Sylvia Boscolo told the court she would do everything she could to arrange Mariella's legal representation.  In response to my request, Sylvia also agreed to provide the court with an update one week later.

   [21] ts, 2 February 2023, 8. 

1. At the directions hearing of 2 February 2023, I made orders to the effect that the parties were required to identify which affidavits they sought to rely upon at the trial and gave leave for the parties to file updated affidavits by 3 March 2023.  I also made orders to the effect that the affidavit evidence at trial would be constituted only by those affidavits (subject to leave in respect of any further evidence). 

2. The matter was listed for further directions on 8 March 2023.  The court received no communication at all from Mariella or Sylvia Boscolo until 7 March 2023.  That communication was a telephone call and subsequent email from Sylvia Boscolo.  The substance of those communications was that legal representation for Mariella had not been arranged.  A further letter from Dr Loukakis was provided, which stated that Mariella had not been able to comply with the court's orders 'because of chronic ill health'.  This correspondence was once again not copied to the other parties.

3. At the directions hearing of 8 March 2023, I again allowed Sylvia Boscolo to represent Mariella.  I emphasised that there were less than five weeks until the trial.  Sylvia Boscolo advised that she was still seeking to obtain representation for Mariella.  I made it clear that the trial would go ahead on 18 April and that it could not be held up indefinitely.  I also made it clear that because Mariella had not complied with the orders, she had no affidavit evidence to be relied upon at the trial.  After a further exchange with Sylvia Boscolo, I extended the time for Mariella to identify the affidavits she wished to rely upon at trial to 15 March 2023.  I gave Mariella until 22 March 2023 to provide any updating affidavit evidence. 

4. The matter was next listed for directions on 22 March 2023.  At that point Mariella had still not complied with the orders of 9 March 2023.  At that directions hearing I again allowed Sylvia Boscolo to represent Mariella.

5. Sylvia Boscolo advised at the hearing on 22 March 2023 that she was still seeking to procure legal representation for Mariella and 'it's looking promising'.  Once again, I made it clear that Mariella did not have any evidence to be relied upon at trial.  The time for compliance with the orders had passed, and she would therefore need leave of the court to adduce any evidence at trial.  This would require an urgent application to do so from any lawyers engaged to represent Mariella.  I also made it clear on that occasion that any application that relied upon Mariella's health would need to be supported by sworn evidence and that a medical certificate would be insufficient.

6. The court did not hear from Mariella or Sylvia Boscolo until Friday, 14 April 2023.  On Friday afternoon the court received communications from Sylvia Boscolo and Dr Loukakis.  Dr Loukakis advised, in a letter sent by email from Sylvia Boscolo, that Sylvia had not been able to procure legal representation for Mariella and that Mariella 'continues to suffer from severe mental illness' and 'is unable to appropriately legally represent herself'.  This correspondence was not copied to the other parties.

7. There was no other communication, less still any application, by or on behalf of Mariella prior to the morning of the trial on 18 April 2023.

8. On the first morning of the trial on 18 April 2023, Sylvia sought to make an application on behalf of Mariella for the trial to be adjourned.  I granted Sylvia Boscolo leave to represent Mariella for that purpose.  The application for an adjournment was opposed by the other parties who had received no notice of the proposed application and had prepared for trial.  Karina and Adrian had taken leave from work and travelled from Sydney for the trial.  The application was not accompanied by any sworn evidence in relation to Mariella's medical conditions, circumstances or otherwise.  Sylvia Boscolo gave the same indications that she had been giving since February; that she considered that she would be able to procure legal representation, and that Mariella would be in a position to prosecute her claim, if she was given further time. 

9. I delivered ex tempore reasons refusing the adjournment.  In short: in light of the absence of any sworn evidence to support the application, the absence of notice to the other parties, the prejudice to the other parties, and the court's clear indications to Sylvia Boscolo on behalf of Mariella over some months of the importance of the trial dates, I refused the application for an adjournment.  The prejudice to the other parties went beyond the fact that they had prepared for the trial to proceed and some of them had travelled to Perth and taken leave from work.  The prejudice also extended to the lack of resolution of the dispute.  I was not satisfied that any sensible or realistic timeframe could be identified by which the court could be confident that an adjournment would serve any purpose. 

10. After refusing the application for an adjournment, I asked Sylvia Boscolo if she wished to make an application to represent Mariella at the trial.  Sylvia declined to make that application.  I then granted Sylvia permission to listen to the proceeding by telephone.  After some further exchange, Sylvia Boscolo advised that she did wish to make an application to represent Mariella in the proceeding.  Sylvia then said she wished to make an application 'in order to listen in and maybe participate'.  I adjourned the court for the morning break, advising that the court would deal with that application after the morning break.  The court resumed after the morning break at around 12:00 pm.  After the morning break, Sylvia Boscolo did not maintain telephone contact with the court.  The court's efforts to resurrect the contact were not successful.  Sylvia Boscolo resumed telephone contact with the court at 12:30 pm.  I advised Sylvia that I was prepared for her to stay on the line and that if she wished to say something she should indicate that over the phone. 

11. On the morning of the second day of the trial, 19 April 2023, the court received further communications from Sylvia Boscolo and a letter from a Dr Pinto.  Once again, this correspondence was not copied to the other parties.  The communications included a long letter from Sylvia Boscolo together with a 125-page document titled 'Subpoena patient export'.  The letter from Dr Pinto advised that Mariella was not 'medically suitable to represent herself in court due to ongoing severe mental health issues'.  The ongoing correspondence from Sylvia Boscolo was effectively a further application for adjournment of the trial.  There was no substantive material difference from the circumstances that prevailed on the morning of 18 April 2023.  I again delivered ex tempore reasons dismissing the second application for an adjournment of the trial. 

12. Sylvia Boscolo made a third application to adjourn the trial on 21 April 2023.  Again, there was no substantive or material change in circumstances, and I refused the third application for an adjournment.

13. I observe also that in the course of submissions made by Sylvia Boscolo on the first morning of the trial it emerged that she had a law degree, and has some experience in litigation.  The publicly available record confirms that Sylvia Boscolo was admitted as a solicitor in New South Wales in 1989.

14. The matters I have set out above provide an overview and summary of the reason why this trial proceeded in Mariella's absence and without her being represented.  As hardly needs to be said, that is an unfortunate outcome.  In all the circumstances I formed the view that the interests of justice required the trial to proceed.

15. In those circumstances, Mariella, regrettably, did not adduce any evidence for the purposes of the trial.  The evidence adduced at the trial was sufficient however to establish that Mariella endured the same dysfunctional environment that was the subject of evidence by others.[22]  There is no doubt on the evidence that Mariella suffered the emotional trauma of the oppressive and deficient living conditions of the family's circumstances.  Moreover, there was evidence from which I infer that Mariella's own psychological condition was more acute than the other siblings.  For example, the evidence was that Mariella had her own bedroom growing up, whereas the other children shared a bedroom.  This was due to Mariella's behavioural and emotional condition.[23]  Her inability to retain two sets of legal representation is also suggestive of Mariella's ongoing challenging circumstances. 

Mariella's claim and needs

[22] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [11], [24], [29]; Affidavit of Julietta Christina Boscolo sworn 26 April 2022 [3].

[23] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [20].

1. Mariella's claim is for further and better provision in the amount of 50% of Mr Boscolo's estate.  By reference to the figures set out at [14], that amounts to approximately $615,200 of the funds held by the estate at the trial. 

2. I find that although Mariella did not produce any evidence at trial, there was sufficient evidence to establish that she was impacted at least as severely as, if not more acutely than, her siblings by the home environment.  It was also uncontroversial that unlike her siblings, Mariella does not, and appears unable to, live independently.  She remains living with her mother, Sylvia Boscolo. 

3. It is not possible on the admissible evidence presented to the court at trial to make any further assessment of Mariella's circumstances.

Virginia Elgo

1. As noted, Mario Boscolo's fifth and final marriage was to Virginia Elgo.  Ms Elgo was born in the Philippines in 1954.  Ms Elgo's evidence was that her sister and brother-in-law were working in Perth and met Mr Boscolo who asked if they knew someone who would be willing to be his wife and carer, as he had previously been married to Filipina women and he wanted another wife to care for him rather than going into aged care.  Ms Elgo and Mr Boscolo commenced a long distance relationship via telephone and email in 2011.[24]  Ms Elgo's first in-person meeting with Mr Boscolo occurred in November 2012 when Ms Elgo visited Australia.[25]  The expiry of her visa required Ms Elgo to return to the Philippines after three months.[26]  Ms Elgo returned to Australia on 28 June 2013, and Ms Elgo married Mr Boscolo on 8 August 2013 when Ms Elgo was 59 and Mr Boscolo was 84.[27]  Ms Elgo was then able to obtain a Bridging Visa and Temporary Residence Visa.[28]  

   [24] Exhibit A [15]; Exhibit B [4].

   [25] Exhibit A [16].

   [26] Exhibit A [16].

   [27] Exhibit A [15].

   [28] Exhibit A [17].

2. Ms Elgo provided Mr Boscolo with companionship and care after their marriage in August 2013.  Ms Elgo's unchallenged evidence was, however, that from late 2014, her emotional condition began to deteriorate as a result of Mr Boscolo's conduct and treatment.  Ms Elgo was subjected to considerable humiliation.  It is not necessary to recount the sordid detail of Ms Elgo's treatment at the hands of Mr Boscolo.  It is sufficient to observe that Ms Elgo too was a victim of Mr Boscolo's narcissism and nastiness.  Her difficulties were compounded because she felt beholden to Mr Boscolo who regularly threatened to take action that would lead to the removal of her immigration status. Notwithstanding her treatment at the hands of Mr Boscolo, it is to Ms Elgo's credit that she gave her evidence in a calm and dignified manner.

3. In August 2015, while the marriage was still on foot, Ms Elgo applied for a permanent residence visa.[29]  In February 2016 and while the application was still pending, Mr Boscolo made good on his threat and advised the Department of Immigration that the relationship was not on foot and indeed had never been genuine.[30]  On 12 April 2016, a delegate of the Department of Immigration refused Ms Elgo's application for permanent residence on the basis that Ms Elgo had provided false and misleading information about her relationship when she applied in August 2015.  That conclusion was most likely reached on the basis of the information provided by Mr Boscolo.

   [29] Exhibit B, 41.

   [30] Exhibit B, 42. 

4. On 15 April 2016, Ms Elgo left Mr Boscolo,[31] having found the relationship no longer tolerable.  In her affidavit, she said this was due to domestic violence and abuse that she suffered from Mr Boscolo.[32]  Ms Elgo went to live with her sister and her family.

   [31] ts, 18 April 2023, 155.

   [32] Exhibit A [28].

5. Ms Elgo appealed the decision of the Department of Immigration to the Administrative Appeals Tribunal (AAT).  By its decision dated 23 May 2017, the AAT upheld the appeal and remitted the application for permanent residence for reconsideration.  The AAT accepted that, as at the date of Ms Elgo's application in April 2015, the relationship was still on foot and she had not left the marriage until April 2016. 

6. Although there was some confusion regarding these matters at trial, on the evidence before the court I find that Ms Elgo was granted permanent residence in May 2018, and subsequently granted Australian citizenship on 21 October 2021.

7. Ms Elgo had employment as a cleaner on Rottnest Island, but that finished in May 2016, by which time she had left Mr Boscolo. 

8. Ms Elgo's evidence was that she did not thereafter receive any financial assistance or contribution from Mr Boscolo, nor is there any evidence that she sought such assistance.

9. Ms Elgo and Mr Boscolo did not reconcile and were estranged at the date of death in February 2018.  On 25 January 2018, the Family Court of Western Australia, on the application of Mr Boscolo, made orders for a divorce to take effect and thereby terminate the marriage on 26 February 2018.[33]  As Mr Boscolo died on 11 February 2018, the order could not be completed.  On 16 March 2018 the Magistrates Court declared that by reason of Mr Boscolo's death, the divorce order of 25 January 2018 was of no effect.  Ms Elgo thus remained Mr Boscolo's lawful wife when he died.

Ms Elgo's position at the date of death

[33] Exhibit B, 75.

1. On the available evidence, I make the following findings regarding Ms Elgo's circumstances as at the time of Mr Boscolo's death.  Ms Elgo:

   (a)was lawfully married to Mr Boscolo in August 2013, but had been estranged from Mr Boscolo since April 2016;

   (b)was not financially supported or assisted by Mr Boscolo and had not been since April 2016;

   (c)was living with her sister;

   (d)was earning a modest income from cash jobs.  The evidence as to the extent of Ms Elgo's earnings in that regard was quite unclear, however it appears to have been very modest;

   (e)had completed a Certificate III in Aged Care, but had not obtained secure employment;

   (f)did not have any substantial assets or savings in Australia.  Ms Elgo did not produce any evidence of her superannuation entitlements that she must have accrued from prior employment, although it is likely this would have been modest;

   (g)according to her affidavit evidence, at the time of Mr Boscolo's death, had nominal assets and no liabilities;[34] and

   (h)was in reasonable health for her age and did not suffer any particularly debilitating medical conditions.

   [34] Exhibit B [38] - [39].

2. As at the date of Mr Boscolo's death, Ms Elgo's appeal against the rejection of her application for permanent residence had been successful.  Although there was no direct evidence on the matter, I infer that as at February 2018 Ms Elgo had some considerable confidence as to the imminent success of her application for permanent residency.  The significance of that is that permanent residency would in due course entitle Ms Elgo to social security benefits, and ultimately, Australian citizenship and the age pension.

Ms Elgo's position at the date of trial

1. As at the date of the hearing Ms Elgo was 69 years of age.  Since December 2019, she has been in a living arrangement with a Mr Enright whom she assists with household chores in exchange for rent-free accommodation.  In her affidavit evidence Ms Elgo stated that Mr Enright 'is only allowing me to stay at his residence on the same basis as before until this Court case is over'.[35]  That rather vague evidence was not explored in cross examination.  I am not in a position to make any findings about Ms Elgo's future arrangement with Mr Enright regarding her accommodation.

   [35] Exhibit D [4].

2. Ms Elgo secured paid employment with Spotless, a cleaning company, in January 2022, but this was short-lived. However, from mid-2022, Ms Elgo obtained employment as a casual cleaner with HT Cleaning Services,[36] and earns approximately $1,145 per fortnight, net after tax.[37]  Ms Elgo's evidence was that she had received superannuation payments from her various employers, including her current employer, however no evidence of any superannuation account or its balance was provided to the court.[38]

   [36] ts, 18 April 2023, 137.

   [37] Exhibit D [3].

   [38] ts, 18 April 2023, 158 - 159.

3. As noted, Ms Elgo was granted permanent residence in May 2018 and Australian citizenship in 2021.  There was some confusion in the evidence regarding Ms Elgo's entitlement to social security payments.  The confusion was not resolved either by the evidence or by submissions on behalf of Ms Elgo.  Notwithstanding the lack of clarity or precision about exactly when Ms Elgo will become entitled to various forms of assistance, it was clear that in due course Ms Elgo's status as an Australian citizen will enable her to receive any social security payments to which she is entitled, such as the age pension, in the same manner as any other Australian citizen.

4. Ms Elgo gave evidence that she suffers from osteoporosis. However, she does not take any medication for the condition,[39] and there was no evidence that it has any material or debilitating impact on her capacity.

   [39] Exhibit A [36].

5. At the time of the trial, Ms Elgo's evidence was that she had nominal assets, and $30,000 in liabilities.[40]  Ms Elgo expanded on those liabilities when being cross examined on her bank statements.  She explained many cash deposits under $1,000 as being loans from her sister.[41] She also gave evidence that she owes money to Mr Enright, as well as her former migration agent.[42]  No documentary evidence of these debts was provided to the court.[43]  The evidence in relation to the debts was vague and entirely unparticularised. 

   [40] Exhibit D [2].

   [41] ts, 18 April 2023, 174, 176.

   [42] ts, 18 April 2023, 177.

   [43] ts, 18 April 2023, 179.

6. On the evidence available to me, I find that Ms Elgo's present circumstances are that she currently has the benefit of an arrangement with Mr Enright that entitles her to accommodation in exchange for the performance of household duties.  There may be some uncertainty about the continuity of that arrangement, but there was insufficient evidence for me to make any finding about that.  Ms Elgo has employment in which she earns $1,145 a fortnight and now that she is an Australian citizen, she will in due course become entitled to social security payments including the age pension.  She has some superannuation, but she did not adduce any evidence of its quantum.

Ms Elgo's claim and needs

1. In her initial application, Ms Elgo sought provision from Mr Boscolo's estate totalling $877,368.44 (including her statutory entitlement of approximately $452,000).[44]  In the month prior to the commencement of trial, Ms Elgo reduced her claim to total $670,000.45 (also including her statutory entitlement of approximately $452,000).[45]  In cross examination Ms Elgo was unable to justify with precision the quantum of her claim, particularly the allowance claimed for 'past and future expenses and contingencies' amounting to $200,000, and the purchase price of homes in the Armadale area, which Ms Elgo estimated at approximately $350,000 to $400,000.[46]

   [44] Exhibit B [47].

   [45]Exhibit D [8].

   [46] ts, 18 April 2023, 178 - 179.

2. In relation to her needs, Ms Elgo's evidence was that she anticipates her expenditure at approximately $2,048 per month.[47]  Ms Elgo was also cross examined on her monthly expenditure - in particular, her regular bank transfers to family in the Philippines.  She gave evidence that her family overseas were facing financial hardship following the pandemic, and so she sends as much money to them as possible.[48]

   [47] Exhibit B [49].

   [48] ts, 18 April 2023, 186 - 188, 190.

Caroline Boscolo

1. As outlined above, Caroline is Mr Boscolo's second child with his first wife, Helene.  She is 64 years old.[49]  I have already given a brief overview of Caroline's relationship with Mr Boscolo, including her traumatic childhood.

   [49] Exhibit E [7].

2. Caroline's unchallenged evidence cast Mr Boscolo as a violent, complaining, critical and unloving spouse and father.  Caroline's perspective was largely shared by Mr Boscolo's other children of his subsequent marriage. 

3. Caroline's evidence was that the episodes associated with Mr Boscolo's outbursts and attitudes had a deep and enduring impact on her wellbeing and mental health.  After Mr Boscolo separated from his first wife, Caroline had no contact with him for some years.  As an adult, Caroline established occasional and limited contact with her father from the late 1980s.  This included occasional family gatherings with Caroline's children.  Caroline described her relationship with her father in her adulthood as cordial.  Caroline's relationship with Mr Boscolo deteriorated after Michael's death due to tensions that arose in relation to Michael's estate.  While Caroline says that she maintained a cool but cordial relationship with her father, Caroline's understandable resentment and emotional scarring remained a dominant feature of their relationship. 

4. Caroline's mother, Helene Danilevich, passed away in 2008.[50]  Caroline received close to half of her mother's estate, which equated to approximately $136,573.[51]  Caroline gave evidence that a significant portion of this money was put towards the purchase price of a property she still owns in Bertram.[52]  It was established at trial that the total purchase price of the property was in the vicinity of $323,000.[53]  Caroline obtained finance in the form of a principal and interest home loan for the remainder of the purchase price.[54]

   [50] ts, 19 April 2023, 236.

   [51] ts, 19 April 2023, 233.

   [52] ts, 19 April 2023, 231.

   [53] ts, 19 April 2023, 231.

   [54] ts, 19 April 2023, 253 - 254.

5. As I have mentioned, in 2009 Caroline's brother and Mr Boscolo's oldest child, Michael, passed away.  Following Michael's passing, a dispute arose regarding Michael's estate.  This saw the already strained relationship between Caroline and her father deteriorate further.  On the evidence given by Caroline, which I accept, this further strain was again the result of Mr Boscolo's preoccupation with his own self-interest.  Caroline and Mr Boscolo had limited contact between the time of Michael's passing in 2009 and Mr Boscolo's death in February 2018.

6. Caroline suffers from a range of medical issues, including a hearing impairment which requires her to wear permanent hearing aids, a depressive disorder for which she is medicated, spinal degeneration, cervical spondylosis which manifests itself in cervicogenic headaches, extensive dental issues, osteoarthritis, and cataracts.[55]

   [55] Exhibit E [32] - [35]; Exhibit H [2] - [12].

7. It was not contentious that Caroline works full time at the Department of Communities and has been employed there in varying capacities for over five years.[56]  She has been in her current role as a case support officer since April 2019.  Due to the nature of her employment, namely that she has been on a number of fixed contracts with the Department, she is not yet entitled to long service leave.[57]

   [56] ts, 19 April 2023, 249.

   [57] ts, 19 April 2023, 250.

8. The evidence demonstrated that Caroline's health has in the past impacted her capacity for employment.  Caroline's affidavit evidence was that from January 2022 she was declared unfit for full time work for medical reasons.[58]  As a result, Caroline was only able to work three days per week.[59]  Having exhausted her personal leave entitlements, Caroline was forced to take leave without pay to facilitate this arrangement.[60]  Caroline returned to full time work in about August 2022.[61]

   [58] Exhibit E [49]; Exhibit H [8].

   [59] Exhibit E [49]; ts, 19 April 2023, 234.

   [60] Exhibit G [14(c)].

   [61] Exhibit H [13]; ts, 19 April 2023, 234, 239.

9. Caroline's fortnightly income in February 2018 was $1,742.91 net after tax.[62]  She was, and is still to this day, supported by the Commonwealth government under a National Disability Insurance Plan.  According to her individual care plan under the NDIS, she received total funded supports in the amount of $7,080 for the year 6 July 2017 to 6 July 2018.[63]

   [62] Exhibit E, "CB-4", "CB-7".

   [63] Exhibit E, "CB-4", "CB-9".

10. Caroline's affidavit evidence was that she had filed a worker's compensation claim.[64]  Caroline's evidence was that that compensation claim had been dismissed.[65]  There was some lack of clarity about that evidence but ultimately, that position was not substantially challenged and I accept that her worker's compensation claim was either dismissed, or very unlikely to succeed.

    [64] Exhibit E [52]; ts, 19 April 2023, 237.

    [65] ts, 19 April 2023, 250; Exhibit H [7] - [8].

11. At the time of Mr Boscolo's death, Caroline used three bank accounts.[66] She used a Smart Access Account as an everyday account,[67] and a Netbank Account in which she would deposit her salary.[68]  As at February 2018, those two accounts held a total of $3,493.73.  Caroline also had a home loan account with Commonwealth Bank.[69]  Caroline's mortgage over the Bertram property then amounted to $206,708.09.[70]  She later refinanced her home loan with National Australia Bank.[71]

    [66] ts, 18 April 2023, 241.

    [67] Exhibit J, "CB1", 5; ts, 18 April 2023, 241.

    [68] Exhibit J, "CB1", 8; ts, 18 April 2023, 242.

    [69] Exhibit J, "CB1", 18; ts, 18 April 2023, 243.

    [70] Exhibit E, "CB-4"; Exhibit I [2(c)].

    [71] ts, 18 April 2023, 243, 246.

12. It was clear from the evidence that Caroline had modest assets at the date of her father's death, the most significant of which being the Bertram property where she lived with her daughter, who contributed $120 per fortnight in board to put toward household expenses.  Caroline had $57,500 in superannuation across two providers - Australian Super and GESB.[72]

    [72] Exhibit E, "CB-5", "CB-6".

13. Caroline's liabilities consisted of the mortgage over the Bertram property, as well as a HECS debt of $9,736.75.[73]  Caroline had been working toward a Diploma in Interior Design when her mother became sick in around 2008, and she withdrew from the course at that point.[74] She stated that since that time, she has had neither the time nor the resources to return to studying.[75]

Caroline's position at the date of death

[73] Exhibit E, "CB-4"; Exhibit I [4].

[74] ts, 19 April 2023, 237.

[75] ts, 19 April 2023, 237.

1. Overall, I make the following findings regarding Caroline's position at the date of Mr Boscolo's death.  Caroline:

   (a)was working full time at the Department of Communities, a position she commenced in July 2017, with fortnightly earnings of $1,742.91 net after tax;

   (b)suffered from a number of medical conditions, including but not limited to a hearing impairment, neck pain and chronic headaches caused by cervical spine degeneration, and a depressive disorder;

   (c)was receiving NDIS funded supports in the amount of $7,080 for the year 2017 - 2018;

   (d)had a fortnightly expenditure of approximately $1,664;

   (e)had modest assets, the most significant of which being the Bertram property where she was living with her daughter, and her superannuation which amounted to $57,500;

   (f)had cash savings equating to approximately $3,500;

   (g)had a mortgage over the Bertram property of $206,708.09; and

   (h)had additional liabilities in the form of a HECS debt totalling $9,736.75, and a credit card debt of approximately $2,000.

Caroline's position at the date of trial

1. At trial, Caroline's fortnightly income was $2,111 net after tax,[76] and her fortnightly expenditure was $2,534.[77]  Of that expenditure, $821 was attributed to the mortgage repayments on her home.  She had assets in the amount of approximately $496,000, and approximately $199,000 in liabilities.[78]  In March 2022, Caroline's home loan balance was $179,295.[79]  In October 2022, Caroline drew down $27,000 on her home loan to pay for legal fees.[80]  As of 18 February 2023, her home loan amounted to $197,608.78.[81]

   [76] Exhibit H, "CB-6".

   [77] Exhibit H [14].

   [78] Exhibit H [19].

   [79] Exhibit E, 101; ts, 18 April 2023, 232.

   [80] ts, 19 April 2023, 240.

   [81] Exhibit H [19], "CB-11"; ts, 18 April 2023, 251.

2. Caroline's NDIS funded supports equate to $32,187.93 for the period 31 January 2022 to 29 January 2025.[82]  This includes 'core supports' of $22,375.68, and total capacity building supports of $9,812.25.[83] Although there appeared to be no binding evidence in relation to the continuity of that funding, it was not suggested that Caroline could not expect to receive further funding in the future to meet her particular requirements.

   [82] Exhibit H, "B7"

   [83] Exhibit H, "CB7".

3. Caroline continues to be employed by the Department of Communities,[84] and returned, as I mentioned, to full time work in August 2022. She remains ineligible at this stage for long service leave and has exhausted much of her leave entitlements due to health complications. She does not expect to become eligible for long service leave prior to her retirement. As at the date of the trial, Caroline had accrued $91,317 in superannuation.

Caroline's claim and needs

[84] ts, 19 April 2023, 249.

1. Caroline's claim is for provision out of Mr Boscolo's estate totalling $340,000.85 (including her statutory entitlement of approximately $111,000).[85]  This is, as I have stated, an increase from $111,000 that she would be ordinarily entitled to under the Administration Act.

   [85] Exhibit D [32].

2. Caroline's evidence was that she does not expect to continue in her current position with the Department of Communities past the age of 65 due to her medical conditions.[86]  Her evidence was that, if she is unable to work until the age of 67 years, she will be forced to apply for a Jobseeker allowance,[87] but will in any event likely be unable to own her house outright prior to retirement.  This is the case even if she applied the entirety of her superannuation to the mortgage over the Bertram property.[88]

   [86] Exhibit H [25]; ts, 19 April 2023, 254.

   [87] Exhibit H [29].

   [88] Exhibit H [27].

3. Caroline will be eligible for the age pension once she reaches the age of 67.  However, the current rate is insufficient to meet her fortnightly expenditure.[89]

   [89] Exhibit H [28].

4. Caroline's evidence was that, without further provision out of Mr Boscolo's estate, her standard of living will decrease significantly, and she will have insufficient funds to sustain her into the future.[90]

   [90] Exhibit H [26].

David Boscolo

1. David is 31 years old, and the youngest child of Mr Boscolo.  David has a history of mental health issues.  He has been diagnosed with depression, suicidal ideations and hallucinations, and previously struggled with substance abuse.[91]

   [91] Exhibit M [97], "DJJB-22".

2. As I have mentioned, Mr Boscolo was granted sole custody of David when David was just 4 years old, and David was consequently isolated from the rest of his family.  Once again, I will not descend into the detail of the abhorrent treatment that David was subjected to at the hands of his father.  However, it is sufficient to say that David's childhood was, perhaps to an even greater extent than that of his siblings, marred by physical and psychological abuse, neglect, and coercive and controlling behaviour.[92]

   [92] Exhibit M [17].

3. As I have mentioned, David had minimal contact with his mother and siblings from the age of 4 until he eventually regained contact with Karina in 2002.  As mentioned, David later visited his family in Sydney during the summer holidays of 2003/04 when he was around 13 years old.  David's evidence was that Mr Boscolo allowed David to live in Sydney with his mother and siblings from 2004 to 2008.  While living with his mother and sister Mariella in Sydney, David was exposed to, and at times subjected to, verbally aggressive behaviour and unsanitary living conditions.  David had poor attendance at school while living in Sydney, and had little to no contact with Mr Boscolo.

4. In 2008, David returned to Perth on a holiday to visit Mr Boscolo and decided to move back to Perth permanently due to the living conditions in Sydney.  David's affidavit evidence was that initially upon his return to Perth, he and Mr Boscolo enjoyed a 'great relationship',[93] however this declined following Michael's death in 2009.

   [93] Exhibit M [32].

5. In 2009, David moved out of Mr Boscolo's house in Coogee, and began living in another property owned by Mr Boscolo in Hamilton Hill, which was being leased by a friend of Mr Boscolo.  David paid rent to Mr Boscolo while living in Hamilton Hill.  Following the move, David maintained a relationship with his father, and saw him 'a few times [a] week'.[94]

   [94] Exhibit M [36].

6. As time progressed, David's evidence was that his relationship with his father drifted, but that they continued to meet around once a month.[95]  David lived in Hamilton Hill until approximately the end of 2016, after which time he and Mr Boscolo had a 'falling out' over a rent dispute concerning the Hamilton Hill property.[96]  David's evidence was that from that time, David had minimal contact with his father until his passing in February 2018.

   [95] Exhibit M [37].

   [96] ts, 19 April 2023, 266 - 267.

7. After completing a bridging course in 2015, David commenced studying a Bachelor of Biomedical Science.  He completed three units of that degree.  While studying, David was assessed for and informed that he may have dyslexia and was accepted into a support program for students with learning difficulties.  However, due to a combination of factors including his unsettled living environment and financial position, David discontinued his tertiary studies.[97]

   [97] Exhibit M [50] - [52].

8. David has lived with Mr Terry Haneveld since 2014.  It is unnecessary to explore the precise nature of that relationship for the purpose of these proceedings.  The relationship has some of the indicators of a de facto relationship, but perhaps not others.  It is neither possible nor necessary to reach a conclusion about the status of the relationship.  The more relevant consideration relates to the financial elements of the relationship.  It was David's evidence that he and Terry maintain separate finances.[98]  David and Terry equally contribute to rent and bills, however David's evidence was that if there is ever a shortfall, Terry contributes David's share.[99]  However, David asserted that he owes the money that Terry has lent him.[100]  This debt was not quantified in his evidence, and David stated that although there was an 'expectation', there was 'not really a demand' and 'no pressure' for repayment.[101]  David appeared to regard the debt as a moral, rather than a legally enforceable, debt but he was emphatic that he regarded himself as duty-bound, and intended, to repay it.

   [98] ts, 19 April 2023, 262 - 263.

   [99] Exhibit N [4] - [13].

   [100] Exhibit N [13]; ts, 19 April 2023, 262 - 263.

   [101] ts, 19 April 2023, 300 - 301.

9. In about February 2018, David had $6,365.77 in assets,[102] and $21,219.52 in liabilities.[103]  That included a Synergy default in the amount of $4,462,[104] and a credit card debt amounting to $2,500.[105]  There was no documentary evidence provided in respect of the credit card debt,[106] and David gave evidence at trial that the account had been closed.[107]  He had, as at February 2018, just $1,065.64 in superannuation.

   [102] Exhibit M [55].

   [103] Exhibit M [60].

   [104] Exhibit M [60].

   [105] Exhibit M [60].

   [106] ts, 19 April 2023, 271.

   [107] ts, 19 April 2023, 271.

10. In his evidence, David stated that in February 2018 he was struggling with a methylamphetamine addiction, and that there were numerous cash transactions associated with his substance abuse.[108]  This explained a number of cash entries in his bank statements, all of which were very modest.  David gave candid evidence at trial that he would frequently use methylamphetamine on weekends and would spend between $100 and $200 a week to fund his addiction.[109]  David gave evidence that he ceased using methylamphetamine in approximately February 2019.[110]

David's position at the date of death

[108] ts, 19 April 2023, 273 - 274, 280 - 281.

[109] ts, 19 April 2023, 287.

[110] ts, 19 April 2023, 287.

1. I make the following findings regarding David's position at the date of Mr Boscolo's death.  David:

   (a)was suffering from severe mental health issues, including (as I have mentioned) illicit drug addiction, depression, suicidal ideations and hallucinations which have at times prevented him from being able to work in order to support himself;

   (b)was unemployed, and had until that time only engaged in casual work with limited job security;

   (c)had been unable to adequately treat his mental health conditions due to his limited financial resources;

   (d)had since 2014 been living in a form of domestic relationship with his partner, Mr Haneveld, who assisted with living costs and other household expenses, and provided companionship and emotional support;

   (e)had minimal assets, the most significant of which being his two vehicles which collectively were worth $5,300;

   (f)had liabilities totalling $21,219.52, the most significant of which being a HECS debt of $7,007.52, and monthly expenses of $2,280.90; and

   (g)had a taxable income of $14,884 for the financial year 2017/18, and received Austudy payments of approximately $508 per fortnight.

David's position at the date of trial

1. David currently runs a small business and earns sporadic income doing gardening, reticulation and salvage work, having issued invoices to the value of $2,034 between 11 January 2023 and 16 February 2023.[111]  David gave evidence at trial that he charges $45/hour for this labour,[112]  and that he had only worked three hours the previous week.[113] At the date of trial David received $784.87 per fortnight through various government assistance programs,[114] and estimated his monthly expenses at $2,795.00.[115]

   [111] Exhibit O [21].

   [112] ts, 19 April 2023, 263.

   [113] ts, 19 April 2023, 264.

   [114] Exhibit O [24].

   [115] Exhibit O [26].

2. At trial, David had assets amounting to $4,015.58,[116] and $29,555.37 in liabilities.[117]  Of the latter, $15,000 was attributed to a loan from Ms Diane Crawford, who is Mr Haneveld's mother.  David's evidence was that Ms Crawford has routinely assisted David with living expenses by loaning him small amounts of cash, and had been doing so over an extended period of time.  Although there was no documentary evidence of this debt, David gave oral evidence that, although he believed that she had loaned him closer to $20,000, Ms Crawford sought to be repaid $15,000 following the distribution of Mr Boscolo's estate.[118]  This debt too appeared to be one which David regarded himself as duty-bound and morally required to pay, rather than a debt that was likely to be enforced through any legal process.

   [116] Exhibit O [6].

   [117] Exhibit O [15].

   [118] ts, 19 April 2023, 271 - 272.

3. David also agreed that he received financial support totalling approximately $1,000 from his brother Adrian between June 2021 and September 2022.[119]  He gave evidence that he also feels a strong moral obligation to pay that money back.[120]

   [119] Exhibit L [51]; ts, 19 April 2023, 292.

   [120] ts, 19 April 2023, 304.

4. It was clear from the evidence given by David at trial that his financial position was fairly dire, although he had both the financial and emotional support of Mr Haneveld and his mother.  It is not possible to reach any determination regarding the legal status of the debts owed by David to Mr Haveveld and his mother.  I accept however, that David considers he has an obligation to pay those debts back, and intends to do so.

David's claim and needs

1. David's claim is for provision from Mario Boscolo's estate totalling $452,000 (including his statutory entitlement of approximately $111,000).[121]  David's claim is made, according to his evidence, in order to obtain stable accommodation, obtain psychological treatment, engage in training or further education, and to invest in his business.

   [121] Exhibit M [106].

1. David's claim for further provision included a capital amount for the purchase of a home, to which he attributed the sum of $350,000.[122]   There was some cross examination directed to the fact that this was a greater sum than David was likely to require for a home for himself.  Whilst it may indeed be possible for a home to be purchased for less than that amount, in my view it could hardly be said that that sum is excessive.

   [122] Exhibit M [106(a)].

Non-claimants

1. For the reasons discussed below in the context of the applicable legal principles, it also necessary to consider the circumstances of the others entitled on the intestacy who are not claimants. 

Julietta Boscolo

1. Julietta Boscolo is Mario Boscolo's second child to his marriage with Sylvia Boscolo.  She is 47 years old.  The evidence before me as to Julietta's circumstances is contained in the three affidavits she filed in these proceedings.  She did not give oral evidence at the trial as the other parties did not seek to cross examine her on her affidavits.

2. Like her siblings, Julietta has suffered severe trauma as a result of the treatment she endured from Mr Boscolo.  In her affidavit evidence, Julietta echoed sentiments shared by other parties to these proceedings of the violence, poverty and dysfunction which marked her childhood.  Julietta suffers from recurring issues which stem from her childhood.[123]

   [123] Affidavit of Julietta Christina Boscolo sworn 26 April 2022.

3. Julietta works as a film and television writer and director.  Although successful in the industry, Julietta's evidence was that the work, and therefore her income, is sporadic, and that the nature of the work requires hours of unpaid labour.[124]  She says that she feels she does not have the skillset to branch into another field of employment other than the film and television industry due to the years she has invested in her career.[125]

   [124] Affidavit of Julietta Christina Boscolo sworn 1 March 2023 [10].

   [125] Affidavit of Julietta Christina Boscolo sworn 1 March 2023 [14].

4. Julietta is a single parent and has an eight-year-old daughter.[126] Her affidavit evidence is that she does not own any substantial assets but has liabilities in excess of $57,000. They include a HECS debt of $13,447.34,[127] and a student financial supplement scheme loan totalling $44,237.[128]  She says that increased cost of living causes her significant stress which impacts upon her health, and that she feels as though she will never escape the poverty in which she was raised.[129]

Julietta's claim and needs

[126] Affidavit of Julietta Christina Boscolo sworn 26 April 2022 [6].

[127] Exhibit K, "JB1".

[128] Exhibit K, "JB2".

[129] Affidavit of Julietta Christina Boscolo sworn 1 March 2023 [13].

1. Julietta seeks to protect her statutory entitlement to Mr Boscolo's estate, which amounts to approximately 9% of the estate or approximately $111,000.[130]

   [130] Affidavit of Julietta Christina Boscolo sworn 1 March 2023 [17].

Karina McDougall

1. Karina McDougall is 46 years old and is Mr Boscolo's third child to his marriage with Sylvia Boscolo.  Karina's account of her childhood and the family's circumstances aligned with those given by her siblings. 

2. It emerged during the course of proceedings that Karina works as a lawyer in Sydney, New South Wales.  She presented as a very capable and astute legal practitioner.  No other evidence was provided either by or on behalf of Karina regarding her financial position or her future needs.

Support for David Boscolo

1. It is clear from Karina's affidavit evidence that she has provided, and continues to provide, emotional and financial support to her younger brother David.

2. Karina's concern for David is not a recent development.  Karina's unchallenged affidavit evidence was that following David's move to Perth with Mr Boscolo in around December 1995, she had grave concerns for David's welfare.  Karina was not able to communicate with David for a period of seven years but would regularly send 'care packages' to Perth which included items such as toys, gifts, cash, photos, cards and confectionary.  Karina would also send David birthday and Christmas presents.  In February 2002, Karina initiated the resumption of contact with David after being provided with his email address.  Karina from that time had weekly email contact with David.[131]

   [131] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [45]-[50].

3. In about April 2002, David and Karina began to communicate by telephone.  In her affidavit evidence, Karina described a discussion between herself, Julietta and Mr Boscolo in November 2022 regarding arrangements for David to visit his mother and siblings in Sydney.  Eventually, 'after a lot of persuasion', David and Mr Boscolo travelled to Sydney for one week on 22 December 2002.  Karina and Julietta paid for David's airfares for this trip, as well as a portion of Mr Boscolo's airfare.[132]  David returned to Sydney with Mr Boscolo on 13 December 2003, after which time David stayed in New South Wales until 2008, when he moved back to Perth to live with Mr Boscolo.  Karina later arranged for David to return to Sydney on 'at least 2 occasions'.[133]

   [132] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [51], [55], [61] - [62].

   [133] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [80] - [84].

4. Karina maintains a close relationship with David and visits him in Perth as frequently as possible.[134]

Karina's claim and needs

[134] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [85].

1. Karina submits that, although she adduced no evidence of any need, on the basis of the evidence she has a moral claim and that her statutory entitlement should not be disturbed.[135]

   [135] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [91].

Mario Boscolo

1. Mario is 43 years old and is Mr Boscolo's fourth child to his marriage with Sylvia Boscolo.  No evidence was provided to the court either by or on behalf of Mario Boscolo in these proceedings.  There is no evidence before the court as to Mario's circumstances, financial position, or his future needs.

Adrian Boscolo

1. Adrian is 39 years old and is Mr Boscolo's fifth child to his marriage with Sylvia Boscolo.  Adrian gave no account of his childhood in his affidavit evidence. 

2. Little evidence was provided as to Adrian's financial position in these proceedings, other than that he is employed as a doctor and works in a hospital in New South Wales, and has a HECS debt totalling $97,379.16.[136]  There was no other evidence provided to the court, either by or on behalf of Adrian, as to his circumstances, financial position or future needs.

Relationship with Mr Boscolo

[136] Exhibit L [12].

1. Adrian's evidence was that, following Mr Boscolo gaining custody of David, he lost contact with his father for several years.  Mr Boscolo and Adrian reconnected when Adrian was attending university in 2007, and maintained a relationship until Mr Boscolo's passing in 2018.  During that time, Adrian assisted Mr Boscolo with his administrative, financial, banking, medical, and legal affairs.  Adrian visited his father regularly in Perth, during which times he would stay at Mr Boscolo's residence in Coogee.  Adrian also maintained consistent contact with Mr Boscolo via phone and email while in Sydney.[137]

   [137] Affidavit of Adrian Boscolo sworn 28 April 2022 [8] - [14].

2. Adrian also made contributions to Mr Boscolo's estate by the provision of advice and assistance with investments and other financial matters including property subdivision and his share portfolio.[138]

   [138] Exhibit L [16].

3. Correspondence was annexed to Adrian's affidavit which evidences the assistance both he and Karina provided to Mr Boscolo following Michael's passing and the subsequent dispute regarding Michael's estate.[139]

   [139] Affidavit of Adrian Boscolo sworn 28 April 2022 [19], "M"; Exhibit L [30]-[31], "M"-"Q".

4. In January 2018, Adrian elected to complete his General Practice training in Perth in order to be closer to Mr Boscolo, who was at the time 'very frail'.  From that time, Adrian became Mr Boscolo's registered next of kin with Mr Boscolo's home care service agency.[140]  Following Mr Boscolo's death in February 2018, Adrian organised and funded Mr Boscolo's funeral arrangements, from which he was reimbursed out of Mr Boscolo's estate.[141]

Support for David Boscolo

[140] Affidavit of Adrian Boscolo sworn 28 April 2022 [27] - [33].

[141] Exhibit L [45].

1. Adrian also provided emotional and financial support to his younger brother, David.  This included, but was not limited to, a number of cash transfers which totalled over $1,000 between June 2021 and September 2022, purchase of a flight ticket to Sydney in order for David to visit his family, and the provision of private tutoring when David was enrolled at university.

Adrian's claim and needs

1. Like his sister Karina, Adrian submits that although he adduced no evidence of any need, on the basis of the evidence, he has a moral claim and that his statutory entitlement should not be disturbed. 

Legal principles

1. Each of the applications are brought under s 6(1) of the Act which provides:

   If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.

2. It may first be observed that the statutory remedy draws no distinction between dispositions created by a will and dispositions effected by the statutory entitlements upon intestacy.  In Re Russell[1970] QWN 22, Lucas J said of the equivalent Queensland statute in the context of intestacy:[142]

   The shares in the estate which accrue to the various persons entitled to share in the distribution accrue to them, generally speaking, by operation of law and not as the result of any conscious or deliberate act on the part of the deceased, although it is of course possible that a man might make a deliberate decision not to make a will.  It seems to me that the most practical way to look at the matter is to imagine that the deceased had made a will whereby he directed that his estate should be distributed as on intestacy, and then to consider the needs and moral claims of the persons who benefit from a distribution in this manner.

   [142] Re Russell[1970] QWN 22, 56.

3. That passage was cited with approval by Gummow and Hayne JJ in Vigolo v Bostin.[143]  Although their Honours' reasoning differed in some respects from other members of the High Court, the explication of Lucas J is not controversial.[144]

   [143] Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [61] (Vigolo).

   [144] See Poole v Barrow [2014] VSC 576 [22].

4. Section 6(2) is directed expressly to an intestacy. Its background was also the subject of observation by Gummow and Hayne JJ:[145]

   In Western Australia, provision respecting intestacy was first made with the enactment of the present legislation in 1972. In the second reading speech on the Inheritance (Family and Dependants Provision) Bill, the Attorney-General said it was "logical" to extend the right of application and to give "the same redress … to deserving claimants in an intestacy". To accommodate the changes now reflected in s 6(1), s 6(2) was included. This states:

   'The Court in considering for the purposes of subsection (1) of this section whether the disposition of the deceased's estate effected by the law relating to intestacy, or by the combination of the deceased's will and that law, makes adequate provision for the purposes of this Act shall not be bound to assume that the law relating to intestacy makes adequate provision in all cases.'

   [145] Vigolo [62].

5. The result is that the court proceeds in this application as if the entitlements set out in s 14 of the Administration Act had been set out in Mr Boscolo's will.

Two stage process

1. In Devereaux-Warnes v Hall [No 3], Buss JA explained the two‑part nature of an application under the Act as follows (citations omitted):[146]

   The first stage involves the determination of whether the disposition of the deceased's estate effected by will or the law relating to intestacy is not such as to make adequate provision from his or her estate for the proper maintenance, support, education or advancement in life of the claimant. The first stage has been described as the 'jurisdictional question', which means no more than that the court's power to make an order in favour of the claimant is conditioned upon the court first being satisfied of the state of affairs referred to in the opening passage of s 6(1), ending with the words 'made under this Act'.

   The first stage involves a question which is strictly one of fact, notwithstanding that it involves the exercise of value judgments.  The evaluative character of the decision arises from the fact that the court must determine whether the claimant has been left without 'adequate' provision for his or her 'proper' maintenance, etc. 

   The second stage, which only arises if the 'jurisdictional question' is determined in favour of the claimant, involves the exercise of discretion: the court may order that such provision as the court thinks fit be made out of the deceased's estate for the proper maintenance, etc, of the claimant. 

   [146] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235 [67] - [69].

2. Buss JA then explained the relevant times at which the first and second stages are to be determined.  As to the first stage, his Honour explained:[147]

   The question which arises at the first stage must be formulated and determined as at the date of death of the deceased, having regard to all material facts that existed at the date of death, whether the deceased knew of them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts.

   At the second stage the court exercises its discretion to order adequate provision for the proper maintenance, etc, of the claimant by reference to the circumstances as they exist at the date of the order. 

The first stage

[147] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235 [70] - [71].

1. Buss JA provided the following overview of the principles applicable to the issue of whether the applicant has been left without adequate provision (citations omitted):[148]

   The determination of whether the provision, if any, made for the claimant is 'adequate' for his or her 'proper' maintenance, etc, involves not only a scrutiny of the requirements of the claimant for maintenance, etc, that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased.

   Plainly, the totality of that relationship would include:

   (a)any sacrifices made or services given by the claimant to or for the benefit of the deceased;

   (b)any contributions by the claimant to building up the deceased's estate; and

   (c)the conduct of the claimant towards the deceased and of the deceased towards the claimant. 

   Any such sacrifices, services or contributions (whether described as giving rise to a moral duty/moral claim or not) are a relevant consideration (as part of the totality of the relationship between the claimant and the deceased), but are neither a necessary nor a sufficient condition for the making of an order under the Act.

   [148] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235 [74] - [76].

2. These principles were reiterated by Buss P in Lemon v Mead.[149]  Buss P explained the task of the court when considering the first stage:[150]

   The question which arises at the first stage must be formulated and determined as at the date of death of the deceased, having regard to all material facts that existed at the date of death, whether the deceased knew of them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts.

   In Coates, Dixon CJ observed that, in determining the question which arises at the first stage, the court must look to what is 'necessary or appropriate prospectively' from the date of death, including events which are contingent as well as those which are certain or exceedingly likely to happen.  Advantage may be taken of hindsight if the subsequent occurrences are within 'the range of reasonable foresight'.

   [149] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76.

   [150] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [54] - [55].

3. When determining the jurisdictional question (namely, whether adequate provision has been made for the proper maintenance, support, education or advancement in life of a claimant), what is 'adequate' financial provision is to be assessed by reference to, inter alia, the size of the estate, the need and moral claim of the claimant or claimants, and the need and moral claim of other persons who have a legitimate claim upon the bounty of the testator. 

The second stage - amount of provision

1. If an applicant meets the jurisdictional threshold of the first stage, the court then exercises a discretion by evaluating the proper provision that it considers ought to be made out of the deceased's estate, and the manner in which that provision should be granted.  How that evaluation is undertaken has been described in various ways.

2. In a widely cited passage of the Supreme Court of Victoria, the Court of Appeal in Grey v Harrison observed:[151]

   There is no single provision of which it may be said that that is the provision that a wise and just testator would have made.  There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences.  Minds may legitimately differ as to the provision that should be made.  Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated.  To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight. 

   [151] Grey v Harrison [1997] 2 VR 359, 366 - 367.

3. In Curnow v Curnow, Hallen J gathered a number of other descriptions of the evaluative exercise:[152]

   It was said in the Court of Appeal (by Basten JA) in Foley v Ellis[2008] NSWCA 288, at [3], that the state of satisfaction 'depends upon a multi-faceted evaluative judgment'. In Kay v Archbold[2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved 'an intuitive assessment'. Stevenson J has described it as 'an evaluative determination of a discretionary nature, not susceptible of complete exposition' and one which is 'inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific': Szypica v O'Beirne[2013] NSWSC 297, at [40] (citing Manuel v Lane [2013] NSWCA 61, at [9], per Emmett JA, speaking in relation to s 20 of the Property (Relationships) Act 1984 (NSW)).

   [152] Curnow v Curnow [2014] NSWSC 896 [109].

4. In Haskakis v Hatzopoulos, White J, in relation to the question of what provision for the plaintiff's maintenance and advancement in life ought to be made, concluded:[153]

   The question of what provision for the plaintiff's maintenance and advancement in life is proper having regard to all of the circumstances of the case cannot be answered in any logical or reasoned way.  It involves an intuitive or evaluative judgment that is not assisted by appeals to community standards or community expectations.

   [153] Haskakis v Hatzopoulos [2015] NSWSC 1408 [96].

5. In this jurisdiction, Beech J (with whom Buss and Mazza JJA agreed) said:[154]

   [T]he court's task in undertaking the second stage must be taken into account.  That task has been described as 'instinctive synthesis' or 'intuitive assessment', in respect of which reasons for the appropriate provision need not be fully articulated. 

   [154] Stone v Braun [2015] WASCA 103 [92].

1. I accept that David has the desire and, in my view, the capacity to develop some sort of career.  However, his ability to do so may, I accept, largely depend on his ability to overcome the chronic and enduring nature of his psychological conditions.  His ability to do so will be enhanced by some relief from his financial difficulties and the anxiety and instability that brings. 

2. In all the circumstances, I have concluded the application of the laws of intestacy left David without adequate provision from the estate of Mr Boscolo.

Further provision for David and adjustment to entitlements

1. In respect of David's claim, it is necessary to turn to the exercise of the statutory discretion at the second stage and determine the appropriate amount of provision.  It is also necessary to identify from where that provision should be taken.

2. As noted, David's evidence relating to his prospective needs and aspirations was cogent and persuasive. It included the purchase of stable residential accommodation, the repayment of debts he feels obliged to repay, and expenditure for treatment, training, and establishing himself in an economically sustainable manner. The stark reality is that the estate simply cannot bear the cost that would in all the circumstances be necessary to address all those matters. To do so would require the court to effect a redistribution of the estate that could only be achieved if no account were taken of the competing claims on the estate's funds. In that regard, it is appropriate to recall the principle explained above that the adequacy of the provision is to be assessed relative to all the circumstances. The estate is not capable of adequately meeting all of David's justified needs and aspirations. In that respect the provision may not be objectively adequate. But as explained, the court is not required, nor indeed empowered, to grant provision in that sense. Rather, the court's function under the Act is to grant provision that in all the circumstances is proper for David's maintenance, support, education and advancement.

3. I have also explained that the assessment is intuitive; it is neither mathematical nor precise, but rather an instinctive synthesis having regard to all the factors. 

4. Adopting that approach, I consider that David's application for further and better provision should be granted, and that David's share of the net estate should be increased from 9% to 30%.

5. The court must then exercise its discretion to determine the source of David's additional 21% of the estate, that is, which entitlement/s should be reduced.  That exercise too can only be undertaken having regard to all the factors set out above.

6. In my assessment, Ms Elgo's entitlement should be reduced by 15% to contribute to David's provision, so that Ms Elgo's entitlement will reduce from 37% to 22%. 

7. Having regard to their circumstances that I have explained above, I consider that the entitlements of Mariella, Caroline and Julietta should not be disturbed.  To do so would reduce their provision to the point where it might be said the outcome leaves them, in all the circumstances, without adequate provision.

8. The balance of David's further provision should come from Karina, Adrian and Mario's entitlements.  Those parties did not provide any evidence of their financial circumstances, and I therefore infer that they have no need.  In light of the evidence of Karina's and Adrian's circumstances, it might be appropriate that their entitlements be reduced somewhat more than Mario's entitlement, about whom the matters put before the court established in substance nothing at all.  Against that must be weighed the evidence that both Adrian and Karina provided ongoing assistance and support to both David and Mr Boscolo, and in Adrian's case, some level of familial companionship.   The emotional and financial support that Karina and Adrian provided to David went above what one might expect of a sibling and were necessitated at least in part by Mr Boscolo's deficiencies as a father.  In all the circumstances, I consider that the burden of the additional 6% required to make up David's entitlement should be shared equally between Mario, Karina and Adrian.

9. I would therefore order a modification to the entitlements on intestacy of Mr Boscolo's estate as follows (with these figures to include the $10,000 interim distribution payments already distributed):

   (a)David's entitlement be increased to 30% (from 9%);

   (b)Ms Elgo's entitlement be reduced to 22% (from 37%);

   (c)Mariella's entitlement remain at 9% (undisturbed);

   (d)Caroline's entitlement remain at 9% (undisturbed);

   (e)Julietta's entitlement remain at 9% (undisturbed);

   (f)Mario's entitlement be reduced to 7% (from 9%);

   (g)Adrian's entitlement be reduced to 7% (from 9%); and

   (h)Karina's entitlement be reduced to 7% (from 9%).

10. It will be necessary to decide whether these percentages are to be allocated to the estate prior to the deduction of costs, or net of costs, or net of some costs but not others.  I will hear from the parties in relation to final orders, which will include that consideration.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

YM
Associate to the Honourable Justice Solomon

10 OCTOBER 2023

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION: BOSCOLO -v- AUSTRALIAN UNITY TRUSTEES LIMITED as administrator of the estate of MARIO BOSCOLO [2023] WASC 391 (S)

CORAM:   SOLOMON J

HEARD:   ON THE PAPERS

DELIVERED          :   6 NOVEMBER 2023

PUBLISHED           :   6 NOVEMBER 2023

FILE NO/S:   CIV 1248 of 2021

BETWEEN:   MARIELLA BOSCOLO

Plaintiff

AND

AUSTRALIAN UNITY TRUSTEES LIMITED as administrator of the estate of MARIO BOSCOLO

First Defendant

VIRGINIA ELGO

Second Defendant

CAROLINE BOSCOLO

Third Defendant

JULIETTA BOSCOLO

Fourth Defendant

KARINA MCDOUGALL

Fifth Defendant

MARIO BOSCOLO

Sixth Defendant

ADRIAN BOSCOLO

Seventh Defendant

DAVID BOSCOLO

Eighth Defendant

Catchwords:

Family provision - Family Provision Act 1972 - Unsuccessful application by wife and adult daughters - Successful application of adult son - Costs of parties - Application for special costs by successful claimant - Applications by other defendants for costs to be paid out of the estate or alternatively to be borne by unsuccessful parties - Settlement offer rejected by plaintiff - Costs in Family Provision Act applications generally - Discretionary considerations

Legislation:

Family Provision Act 1972 (WA)
Supreme and District Courts (Contentious Business) Determination 2020 (WA)
Supreme and District Courts (Contentious Business) Determination 2022 (WA)

Result:

Orders made

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance

Solicitors:

Plaintiff	:	No appearance
First Defendant	:	Jackson McDonald
Second Defendant	:	JK Legal
Third Defendant	:	Templar Legal Pty Ltd
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	Haynes Leeuwin

Cases referred to in decision:

Boscolo v Australian Unity Trustees Ltd as administrator of the estate of Mario Boscolo [2023] WASC 391

Daniels v Hall [No 2] [2014] WASC 272

Dean v Collins [No 2] [2015] WASCA 151

Hodder v Australian Executor Trustees [No 2] [2021] WASC 415

Kiernan v Cranston [2019] WASC 410 (S)

SOLOMON J:

Overview

1. Following the publication of reasons in Boscolo v Australian Unity Trustees Ltd as administrator of the estate of Mario Boscolo [2023] WASC 391, the parties filed written submissions in respect of costs.  These brief reasons deal with that aspect of the matter.  I adopt the names of the parties used in the primary reasons.

The parties' positions

1. I set out below the positions taken by the parties in relation to costs.

2. The plaintiff, Mariella, filed no material.

3. The first defendant has advised the court of its position that its costs should be paid from the estate as a testamentary expense.

4. The second defendant, Ms Elgo's position is that the first defendant's costs should be paid out of the estate as a testamentary expense prior to any distribution of entitlements, and all parties should otherwise bear their own costs of the proceedings.

5. The third defendant, Caroline, put forward a primary and two alternative positions.  In each position she accepts that the first defendant's costs should be paid out of the estate.  Her primary position is the same as Ms Elgo, that all parties should otherwise bear their own costs of the proceedings.  Caroline's first alternative is that the estate also pay David's costs fixed in the sum of $67,757.  The second alternative is that the estate pay David's costs to be taxed in accordance with the Supreme and District Courts (Contentious Business) Determination 2022 (WA) (Scale), and that any permitted uplift on the Scale should be paid by the plaintiff.

6. In her submissions, Caroline also drew attention to an offer made by David dated 1 October 2021 which was made 'without prejudice save as to costs'.  The offer was to settle David's claim by the payment to him of $150,000.  That offer was acceptable to all the parties who participated in this proceeding, other than Mariella.  In the result, David will receive more from the estate than he was prepared to accept by that offer.  On that basis, it was submitted on behalf of Caroline that if any party should bear the costs of David's successful application, it should be borne by Mariella who declined the offer and who was unsuccessful in her own claim. 

7. The fourth defendant, Julietta, submitted that each party should bear his or her own costs.  Julietta also appeared to accept that the first defendant's costs should be paid out of the estate but submitted that the first defendant's costs payable out of the estate should be reduced.

8. The fifth defendant, Karina's position was that the first defendant's costs should be paid out of the estate as a testamentary expense and that the non-successful claimants, that is, Mariella, Ms Elgo and Caroline, should bear the costs of David's successful application.  In the alternative, Karina submitted that Ms Elgo alone should bear the costs of David's application.  In any event, Karina submitted that Mariella, Ms Elgo and Caroline should bear their own costs.

9. The sixth defendant, Mario, filed no material.

10. The seventh defendant, Adrian submitted that each party should bear their own costs. 

11. The eighth defendant, David, also accepted that the first defendant's costs be paid by the estate as a testamentary expense prior to any division of the estate.  David submitted that his costs should be paid from the respective entitlements of Mariella, Ms Elgo and Caroline.  Further, David submitted that his costs be fixed in the sum of $98,183.67 which includes a total of $67,757 assessed in accordance with the Scale, disbursements, and an uplift of $30,360 for Item 12 of the Scale.  The uplift was said to be justified on the basis that David's costs involved not only advancing his own claim but considering and engaging with the claims of Mariella, Ms Elgo and Caroline. 

Applicable principles

1. In Daniels v Hall [No 2],[185] Heenan J undertook a thorough review of considerations that are applicable to the issue of costs for applications under the Family Provision Act 1972 (WA) (the Act).  Before turning to those principles, it is appropriate to note Heenan J's observation following his explanation of the principles:[186]

   All these observations and dicta are, undoubtedly, helpful and pertinent but it must never be forgotten that in awarding costs in claims under this litigation the court is exercising a broad and general discretion which must have regard to the circumstances of each particular case and not be limited, controlled or circumscribed by any general rule or practice.

   [185] Daniels v Hall [No 2] [2014] WASC 272 (Daniels).

   [186] Daniels [37].

2. The considerations identified by Heenan J included matters that may be summarised as follows:

   (a)Although the court will generally order that the successful party to any action or matter should recover his or her costs, any award as to costs is in the discretion of the court. The breadth and generality of the court's discretion with respect to costs in proceedings pursuant to the Act is confirmed expressly by s 14(6) of the Act which provides that the court may make such order as to the costs of any proceeding under the Act as it deems just.

   (b)Although the consolidated practice directions of this court cannot limit or control the general discretion of a judge in determining what, if any, orders for costs should be made in any particular case, they are nevertheless illustrative of matters which may be taken into consideration.  Those directions include the following:[187]

   […] The Court is concerned by the excessive costs often incurred in Family Provision Act matters […] and is obliged to ensure that the principle of proportionality set out in O 1 r 4B in the Rules of the Supreme Court applies in the way that proceedings are managed to settlement or trial.

   […] When making final orders after trial the Court will consider whether costs should simply follow the event with the result that an unsuccessful party may be required to pay the costs of the successful party or at least bear his own costs.  Practitioners should not assume that the costs of unsuccessful parties will necessarily be awarded from the estate.  Further, the costs orders made by the Court and the amount of costs payable to or by a party will take into account any unreasonable conduct by that party or any other party in the course of the application.

   (c)The usual practice that, in civil litigation, costs should follow the event or outcome of the litigation is not invariably applicable in proceedings under the Act. Family provision claims uniquely turn on considerations that render an assessment of the nature and prospects of success in any particular case more difficult than in many other types of litigation. These difficulties mean that a degree of restraint and tolerance is necessary in some cases if the court is asked to refuse or limit costs for an applicant, whether successful or unsuccessful. There has been a long-standing recognition that in family provision proceedings, caution needs to be exercised in merely resorting to and applying a general rule that costs follow the event. It may nevertheless be said that a successful applicant is usually, but not always, entitled to his or her costs of the proceedings, such costs to be paid out of the estate as the court may direct.

   (d)Other beneficiaries who appear in the proceedings, particularly residuary beneficiaries, have an existing interest under the will or intestacy to protect and, subject to reasonable conduct on their behalf and to their avoidance of unnecessary duplication of representation and other expenses, are usually entitled to their costs of the proceedings on a party and party basis, again regardless of the outcome. 

   (e)Restraint or limitation on diminishing the estate by large costs orders may be appropriate in order to preserve or, if possible, re-establish family harmony in the longer term.  Historically, this was a reason that even an unsuccessful (but not unreasonable) claimant may have had their costs paid from the estate.

   (f)The resources available to meet orders as to costs are usually quite limited.  If the costs are to be met out of the estate, then it is important to consider the impact of costs which are likely to reduce the entitlement of other beneficiaries, particularly residuary beneficiaries, to the share of the estate which the testator, or the law of intestacy, provided for them. 

   (g)Not infrequently, an offer of settlement may have been made to an applicant which is declined and then the eventual outcome is less favourable to the party who declined the offer.  Again, because of the occasional difficulties in predictability of any outcome in the course of such litigation, the mere failure to obtain a result more favourable than an offer which has been rejected will not necessarily deprive an applicant of his or her costs or result in an order for costs being made against that applicant.  However, that factor will be relevant in the exercise of a general discretion to award costs, and if the rejection of the offer was, on an objective basis, unreasonable in the circumstances, it may lead to an order for costs being made against the applicant even on an indemnity basis.

   [187] Daniels [12].

3. In Dean v Collins [No 2], Chaney J (with whom Martin CJ and Buss JA agreed) said:[188]

   [I]t is now the general policy of the court to order that the costs of proceedings under the Family Provision Act be borne by the beneficiaries or claimants who were unsuccessful in the proceedings.

   [188] Dean v Collins [No 2] [2015] WASCA 151 [34].

4. Notwithstanding that expression of general policy, there can be no doubt that the discretion in the awarding of costs remains at large and broad.  Moreover, there is nothing in Dean v Collins to suggest that the considered and thorough examination of the principles by Heenan J in Daniels does not remain relevant and applicable.  The principles set out by Heenan J have been applied consistently in this court; see for example Kiernan v Cranston [2019] WASC 410 (S) at [7] and the observations of Hill J in Hodder v Australian Executor Trustees [No 2] [2021] WASC 415 at [23].

Relevant considerations

1. In light of those principles, I consider that the following matters are of particular significance in the exercise of the court's discretion as to costs.

   (a)The estate, while not small, is not ample.  A costs order against a party is likely to absorb much and possibly all of the entitlement that party would otherwise receive.

   (b)David was the only successful claimant.

   (c)David was prepared to settle the claim in October 2021 for less than he will now receive.  Other than Mariella, the other participating parties would have been content with that.  It is not possible to ascertain whether that would have resolved all the claims against the estate and avoided the proceedings entirely.

   (d)While Caroline's claim was unsuccessful, her entitlement was left undisturbed.  The practical effect of an award of costs against Caroline would in my view not be a just outcome in light of her circumstances and the fact that her claim, whilst unsuccessful, was not unreasonable.

   (e)Ms Elgo's claim was unsuccessful, and her entitlement was reduced significantly.  Her circumstances are fairly dire.  Again, in my view the practical effect of an award of costs against Ms Elgo would not be a just outcome in the circumstances.

   (f)Whether or not Mariella's refusal of David's offer was the cause of the maintenance of this proceeding that would otherwise have been resolved, it is plainly the case that the directions hearings before me of 2 February 2023, 8 March 2023 and 22 March 2023 were necessitated by and directed to, in part, Mariella's ongoing default in complying with the court's orders.  In addition, a good portion of the opening day of the trial on 18 April 2023 was spent dealing with Mariella's unsuccessful application for adjournment which she brought without notice to the other parties. 

   (g)Julietta's circumstances are very difficult.  Nevertheless, she did not make a claim and sought only to preserve her entitlement and provide information to the court as requested.  She was successful in preserving her entitlement.  In my view, Julietta should not bear any of the costs of the proceeding. 

David's special costs application

1. David has applied for a special costs order to the effect that the scale limits imposed by Item 12 of the Scale, and the 2020 scale,[189] be uplifted. Specifically, David sought an uplift of the 40-hr limit imposed upon Item 11(a). Ordinarily, 11(a) is limited to 50 hours of a practitioner's time. Item 12 reduces that limit to 40 hours where the originating process is filed pursuant to the Act.

   [189] Supreme and District Courts (Contentious Business) Determination 2020 (WA).

2. It was submitted on behalf of David that a 40-hr limit is inadequate in circumstances where there were multiple claimants, and where those overlapping claims increased the complexity of the matter.  Attached to written submissions filed on David's behalf was a schedule setting out a calculation of the special costs sought, which totalled 60 hours of time charged at the maximum rate for a senior practitioner.  Those calculations were supported by an unsworn document called 'Timesheet Listing', which appears to record the timesheet and costs incurred by David's solicitors between September 2021 and April 2023 - that is, from the mediation conference to the trial.

3. I observe that the calculations contained in Schedule 1 appear to rest on an assumption that David is entitled to recover the maximum allowable rate for a senior practitioner under the Scale, being $506/hr.  That is notwithstanding that from September 2021 - July 2022, the 2020 scale applied, limiting the maximum recoverable rate of a senior practitioner to $495/hour.  That is also notwithstanding that David's solicitors in fact only charged $450/hr.  It is likely that the total amounts claimed in the submissions would need be reduced to account for these discrepancies, even if an uplift of the time limit were ordered.

4. In order to satisfy the court that special costs orders are justified, an applicant must ordinarily establish that by virtue of the proceedings' unusual difficulty, complexity or importance, the amount recoverable by a successful party under the relevant scales will be inadequate.  I am unable in this case to be satisfied of those matters.  It is not particularly unusual in proceedings of this kind that there will be multiple competing claims on an estate.  Nor is it unusual that some of the parties in a matter such as this will be self-represented. 

5. In the circumstances, I am not satisfied that the estate should bear a special costs order in respect of David's costs.

6. As the trial judge in this matter, I am satisfied that I have sufficient information to otherwise fix David's costs.  To account for the minor calculation issues in respect of the recoverable hourly rate identified at [20], I would reduce the amount claimed to $64,500.  

Disposition

1. In all the circumstances I consider that the court's exercise of discretion in respect of costs should be as follows:

   (a)The first defendant's costs should be paid as a testamentary expense.

   (b)Julietta's share should be paid from the balance after the deduction in (a).

   (c)David's costs fixed in the sum of $64,500 should be paid from the balance after the deductions in (a) and (b).

   (d)One third of each party's costs of and associated with the directions hearings of 2 February 2023, 8 March 2023 and 22 March 2023, and the first day of trial of 18 April 2023, should be paid from Mariella's share.  I am prepared to fix those costs on the production of evidence to satisfy me of those costs.

2. Each party should otherwise bear his or her own costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

IS
Associate to the Honourable Justice Solomon

6 NOVEMBER 2023