Busuttil v DeGabriele

Case [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…

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Busuttil v DeGabriele [2013] VSC 215
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[2013] VSC 215
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CaseChat Overview and Summary

The case of Busuttil v DeGabriele involved a dispute concerning the estate of a deceased individual. The plaintiff, who is the stepson of the deceased, applied for an order that the deceased had not made adequate provision for his proper maintenance and support. The case was heard in the Supreme Court of Victoria. The primary focus of the legal issues was whether the deceased had made sufficient provision for the plaintiff's maintenance and support under section 91 of the Administration and Probate Act 1958. The court had to consider the financial circumstances of the deceased, the plaintiff, and other family members at the time of the deceased's death.

The court analysed the deceased's financial position and the financial needs of the plaintiff. It was established that the deceased had made certain payments to the plaintiff during their lifetime, which were considered in the context of the deceased's overall financial situation. The court examined the deceased's assets, income, and liabilities to determine whether the provision made for the plaintiff was adequate. The court also took into account the plaintiff's own financial situation and his capacity to support himself independently. The court's reasoning involved a careful assessment of the deceased's ability to make provision for the plaintiff and the plaintiff's need for support.

After considering all the evidence and arguments presented, the court concluded that the deceased had made adequate provision for the plaintiff's maintenance and support. The court found that the deceased had made payments to the plaintiff during their lifetime, and these payments, combined with the plaintiff's own financial resources, were sufficient to meet his needs. The court determined that the plaintiff had not demonstrated that he required further financial support from the deceased's estate. Consequently, the court dismissed the plaintiff's application. The final orders of the court were that the plaintiff's application be dismissed, with no order as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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