CITATION: Carpio v Roncalla [2000] NSWSC 1000 FILE NUMBER(S): SC 2441/99 HEARING DATE(S): 24-27 May 2000 JUDGMENT DATE: 30 October 2000 PARTIES :
Fred Caprio, Jenny Caprio, James Carpio (Plaintiffs)
Nancy Maria Loaiza Vela Roncalla (Defendant)JUDGMENT OF: Master McLaughlin at 85
COUNSEL : G. A. Sirtes (Plaintiffs)
J.E. Armfield (Defendant)SOLICITORS: Hancocks Solcitors (Plaintiffs)
Cabarrus & Associates (Defendant)CATCHWORDS: Family Provision - Claims by three adult children and former wife - Small estate - Entire estate left to widow - Assertion by Plaintiffs that marriage of Deceased to Defendant was a marriage of convenience or a sham marriage - Deceased transferred to Defendant a one half interest in matrimonial home - Financial and material circumstances of Plaintiffs - Whether there are factors which warrant the making of the application by the former wife of the Deceased - Competing claims of Defendant LEGISLATION CITED: Family Provision Act 1982
Family Law Act 1975DECISION: See paragraph 85
SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISIONMASTER McLAUGHLIN
Monday, 30 October 2000
2441/99 FRED CARPIO and ors -V- NANCY MARIA LOAIZA VELA RONCALLAJUDGMENT
1 MASTER: These are proceedings under the Family Provision Act 1982. 2 The proceedings were instituted by summons filed on 21 May 1999 by the Plaintiffs, Fred Carpio, Jenny Carpio and James Carpio. By that summons the Plaintiffs claim an order for provision for their maintenance and advancement in life out of the estate and/or the notional estate of their late father Genaro Ramiro Roncalla (to whom I shall refer as “the Deceased”). Subsequently, on 8 June 1999, there was filed a document entitled “Amended Summons”, the parties to which and the relief claimed wherein appear to be identical to those set forth in the summons. 3 Subsequently, on 28 March 2000 an order was made by consent that Juana Guenilda Carpio be joined as a Plaintiff to the proceedings, and that she have leave to file and serve an amended summons reflecting such joinder within seven days of the making of such order. Juana Guenilda Carpio is the former wife of the Deceased and is the mother of the three Plaintiffs named in the summons. There has not yet been filed an amended summons of the nature contemplated by the consent orders made on 28 March 2000. However, the proceedings were conducted upon the basis that Mrs Carpio was properly a party thereto, and that the proceedings consisted of a claim by the three children and the former wife of the Deceased. 4 The Deceased died on 16 January 1999 (aged 63), as a result of injuries received by him in a motor vehicle accident on that date. He left a will dated 7 December 1998, probate whereof was on 5 August 1999 granted to his widow Nancy Maria Loaiza Vela Roncalla, the executor named in such will (who is the Defendant to the present proceedings). 5 By that will the Deceased, in the events which have happened, gave the entirety of his estate to the Defendant.…
Details
- AGLC
- Carpio v Roncalla [2000] NSWSC 1000
- Case
- [2000] NSWSC 1000
- Decision Date
CaseChat Overview and Summary
The case of Carpio v Roncalla involved claims by three adult children and the former wife of the deceased, all asserting entitlement to a share of the deceased's estate. The estate in question was modest, and the deceased had left the entirety of it to his widow, the defendant. The plaintiffs argued that the marriage between the deceased and the defendant was a marriage of convenience or a sham, and as such, the estate should be distributed according to their claims rather than solely to the defendant. The deceased had transferred a half interest in their matrimonial home to the defendant, which the plaintiffs contended was an unfair enrichment. The financial and material circumstances of the plaintiffs were also considered, with the plaintiffs asserting that they were in need and that the deceased's estate was insufficient to meet their needs.
The court was tasked with determining whether the marriage was indeed a sham or a marriage of convenience, and if so, whether this justified a departure from the estate being left entirely to the defendant. The court also had to assess the claims of the former wife against those of the children, and whether there were any factors that warranted the making of the application by the former wife. The competing claims of the defendant were also weighed, particularly in light of the transfer of the half interest in the matrimonial home.
The court concluded that the marriage was not a sham and found no evidence to support the assertion that it was a marriage of convenience. The court found that the transfer of the half interest in the matrimonial home was valid and did not constitute unfair enrichment. The court found that the former wife's claims were not supported by any evidence, and the financial and material circumstances of the plaintiffs did not warrant a departure from the deceased's wishes. The court dismissed the claims of the plaintiffs and upheld the defendant's entitlement to the entire estate.
The court was tasked with determining whether the marriage was indeed a sham or a marriage of convenience, and if so, whether this justified a departure from the estate being left entirely to the defendant. The court also had to assess the claims of the former wife against those of the children, and whether there were any factors that warranted the making of the application by the former wife. The competing claims of the defendant were also weighed, particularly in light of the transfer of the half interest in the matrimonial home.
The court concluded that the marriage was not a sham and found no evidence to support the assertion that it was a marriage of convenience. The court found that the transfer of the half interest in the matrimonial home was valid and did not constitute unfair enrichment. The court found that the former wife's claims were not supported by any evidence, and the financial and material circumstances of the plaintiffs did not warrant a departure from the deceased's wishes. The court dismissed the claims of the plaintiffs and upheld the defendant's entitlement to the entire estate.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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