Busuttil v DeGabriele

[2013] VSC 215

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. SCI 2012 of 02705

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

and

IN THE MATTER of the Will and Estate of JOSEPHINE BUSUTTIL deceased

WILLIAM BUSUTTIL	Plaintiff
and
JACKLYN DeGABRIELE and JOSETTE DeGABRIELE (Who are sued as Executors of the Will of the above named deceased)	Defendants

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JUDGE:	DIGBY J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2013
DATE OF JUDGMENT:	2 May 2013
CASE MAY BE CITED AS:	Busuttil v DeGabriele
MEDIUM NEUTRAL CITATION:	[2013] VSC 215

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ADMINISTRATION AND PROBATE – Testator’s Family Maintenance - Application by stepson – Whether the deceased made adequate provision for the proper maintenance and support of the plaintiff – Section 91 Administration and Probate Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R C Wells	McNab, McNab & Starke
For the Defendants	R Boaden	Victor Borg & Co

HIS HONOUR:

Introduction

1. Josephine Busuttil, who died on 16 August 2011, left an Estate valued at approximately $846 000.  After certain pecuniary legacies, payments and expenses the deceased’s Will dated 21 June 2011 provided $100 000 for her disabled 53 year old stepson the plaintiff, and otherwise left a residuary estate of approximately $358 108 to the deceased’s brother and his wife, and the deceased’s two nieces and a nephew.  The deceased did not have any children of her own. 

1. In this proceeding commenced by originating motion dated 10 May 2012, the plaintiff claims that the deceased’s Will of 21 June 2011, failed to make adequate provision for his maintenance and support.  The plaintiff seeks provision for proper maintenance and support from his stepmother’s Estate sufficient to enable him to purchase modest freehold accommodation of his own, for about $320 000, and in addition $50 000 to be applied to discharging his debts, the purchase of private health insurance and to provide for some limited discretionary expenditure.

1. For reasons set out below I am persuaded that William Busuttil has established an entitlement, under the provisions of Part IV of the Administration and Probate Act 1958 (“the Act”), to a specific legacy of $ 250  000. 

Background and facts

1. The affidavit material filed by the parties, and oral evidence given by the plaintiff at trial, establish the following:

(i)the plaintiff’s father Saviour Busuttil, known as “Sam” was born in the 1920s and died on 31 July 2010;

(ii)Sam and his first wife, Rosina, had three children;

•Antoinette, born in 1951

•Raymond, born in 1953, and

•the Plaintiff William Busuttil, known as “Billy”, born on 29 March 1960.

(iii)In the 1950’s Sam and Rosina bought a home at 4 Pridham Street Flemington (Pridham Street);

(iv)Rosina died in September 1960;

(v)Billy lived with his father and neighbours and two maternal uncles for a year or two after about late 1960;

(vi)After several years the three children went to separate institutions.  Billy was made a ward of the State, and save for a…