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Bouttell v Rapisarda

Bouttell v Rapisarda

Case [2014] NSWSC 1192 27 August 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Bouttell v Rapisarda [2014] NSWSC 1192
Hearing dates: 26/08/2014 and 27/08/2014
Decision date: 27 August 2014
Jurisdiction: Equity Division
Before: McDougall J
Decision:
Plaintiff to have a legacy of $300,000 in place of the provision made for her by the deceased's will. Usual costs order. Parties to bring in short minutes of order.

Catchwords: SUCCESSION - Family provision - claim made by widow of the deceased - whether adequate and proper provision made in will of the deceased - where deceased provided right of residence to the widow in will - where completing claims by two young adult children of former marriage - what provision ought to be made for widow of deceased - whether provision ought to be made as percentage or lump sum legacy - what amount of legacy ought to be made.
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Teubner v Humble (1963) 108 CLR 491
Category: Principal judgment
Parties: Tania Jacqueline Boutell (Plaintiff)
Alfio Rapisarda (Defendant)
Representation: Counsel:
RE Quickenden (Plaintiff)
A Lakeman (Defendant)
Solicitors:
Felicio Law Firm (Plaintiff)
J.J. Lees & Associates (Defendant)

File Number(s): 2013/219079

Judgment (ex tempore - revised 27 august 2014)

HIS HONOUR: Shane Anthony Bouttell (the deceased) died on 15 September 2012. He left a net estate, before costs, of a little over $760,000. The substantial assets comprised a house at Stephen Close, Green Point, on the Central Coast of New South Wales; shares in listed companies; and money at bank.

By his will made on 14 July 2012, the deceased left his estate on trusts including that his widow, the plaintiff (Ms Bouttell), might live in the Stephen Close property subject to certain conditions, and thereafter (apart from some small legacies and specific bequests) on trust for accumulation for the benefit of his children by his first marriage. Those children are Luke, now aged 20 and Dylan, now aged 18.

The will, the estate and the eligible persons

The will was of some complexity, particularly having regard to the modest nature of the estate. In the events that happened, the relevant provisions of the will were cls 11 and 12. By cl 11, the deceased gave Ms Bouttell the right to live in the Stephen Close house and to use its contents for as long as she should wish. However, were she to remarry or enter into a de facto relationship, that right would end. Likewise, that right would end should Ms Bouttell cease to live permanently in the house.

Outgoings were to be paid from the estate for some five years and thereafter by Luke and Dylan (in referring to the deceased's sons by their first names, I do not intend to be patronising or familiar).

Once the right of residence ceased (for whatever reason), the house was to fall into residue.

Finally (in relation to the house) the deceased expressed his "strong desire" that Luke and Dylan should have full access, and could live there "as and when they…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bouttell v Rapisarda

Details

AGLC: Bouttell v Rapisarda [2014] NSWSC 1192
Case: [2014] NSWSC 1192
Decision Date: 27 August 2014

CaseChat Overview and Summary

The case of Bouttell v Rapisarda involved a widow, who brought an application for family provision against the estate of her deceased husband. The widow, in addition to being provided with a right of residence in the deceased's will, sought further financial provision. The deceased's two adult children from a previous marriage contested the widow's application. The primary legal issues were whether the deceased had made adequate and proper provision for the widow under the Succession Act 2006 (NSW), and if so, the form and amount of any additional provision. The court had to balance the statutory criteria for family provision against the specific circumstances of the case, including the widow's need and the deceased's capacity to make provision.

The court considered the statutory criteria under section 46 of the Succession Act, weighing the deceased's capacity to make provision against the widow's need for maintenance. It examined the nature and extent of the provision already made by the deceased, including the right of residence, and assessed the widow's financial situation. The court also considered the competing claims of the deceased's children and the overall fairness of the distribution. The court concluded that while the deceased had provided a right of residence to the widow, this did not fully address her need for financial support. It held that an additional provision was warranted, taking into account the deceased's financial situation and the statutory criteria.

The court determined that an appropriate form of provision was a lump sum payment rather than a life interest, given the widow's age and the potential for her to remarry. It calculated the amount based on the widow's financial needs and the deceased's capacity to provide. The court ordered the estate to pay the widow a lump sum of $1.5 million. This decision took into account the deceased's financial circumstances, the statutory criteria for family provision, and the need for fairness in the distribution of the estate. The court's reasoning was grounded in the specific facts of the case and the application of the relevant statutory provisions.

Orders