Colosi v Colosi - [2013] NSWSC 1892

Supreme Court

New South Wales

Medium Neutral Citation: Colosi v Colosi [2013] NSWSC 1892
Hearing dates: 9 December 2013
Decision date: 09 December 2013
Jurisdiction: Equity Division
Before: Young AJ
Decision:
Family provision ordered.

Catchwords:
SUCCESSION - Family provision - Application by widow - Where married for twenty years with no benefaction for widow - Where all property left to children of earlier marriage - Provision ordered.
SUCCESSION - Family provision - Deed of release - Where plaintiff made deed of release before death - Where couple had made after marriage statement of intention as to disposition of assets upon death - Whether documents binding on plaintiff - Succession Act 2006, s 65.
Legislation Cited: Succession Act 2006
Cases Cited: Lowe v Lombank Limited [1960] 1 WLR 196
Category: Principal judgment
Parties: Carmela Colosi (Plaintiff)
Carmelo Colosi (Defendant)
Representation: Counsel:
D P M Ash (Plaintiff)
S Docker (Defendant)
Solicitors:
J S Pinto & Co (Plaintiff)
Kemp Strang (Defendant)

File Number(s): 2012/61873
Publication restriction: Nil

Judgment

Introduction

This is a widow's application for provision out of the estate of Antonio Colosi pursuant to part 3.2 of the Succession Act 2006. The plaintiff and the deceased married on 9 January 1994; it was the second marriage for both. At the time of the marriage the plaintiff had three children by a former marriage and the deceased had two children by his former marriage. The deceased died on 9 August 2011. He made his last will and testament shortly before that on 22 July 2011. Probate was granted to the defendant on 28 March 2012. The will benefits the deceased's son and daughter, and the plaintiff receives no benefit at all.

For probate purposes the estate was estimated as having a value of $1,715,572. This includes $950,000, the estimated value of the deceased's house at Strathfield. Normally it is not very reliable to take estimates for probate purposes, but basically the parties have accepted those figures as being roughly what the estate is worth. However, the Strathfield property would now appear to have a value of $1.3 million, but for reasons I will give shortly, that really is immaterial.

Statement of Intention

On 20 June 1997, that is some three and a half years after their marriage, the plaintiff and the deceased signed a document entitled "Statement of Intention." That document is set out in full in the Appendix to these reasons.

The document was expressly said to be provisional, and it indicated that a formal document would follow, but the evidence of the solicitor who drew it showed that that was not really intended by the parties. The solicitor who drew up the document also said that he advised both parties that the document was not legally binding, it was merely a Statement of Intention.

We do not know what the deceased thought the document meant. We do know that the solicitor no longer has his file, and, naturally enough, has no particular memory of this transaction. His affidavit merely sets out…

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.

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Details

Case: [2013] NSWSC 1892
Decision Date: 09 December 2013

CaseChat Overview and Summary

In the case of Colosi v Colosi, the deceased had been married to the plaintiff for twenty years. The deceased had children from an earlier marriage, and the plaintiff had no children. The deceased's will left all his property to his children from the earlier marriage, with no mention of the plaintiff. The plaintiff sought to challenge the will under the Family Provision Act, seeking an equitable share of the deceased's estate. The court was required to determine whether the deceased's will was fair and reasonable in light of the plaintiff's contributions to the marriage and whether a deed of release executed by the plaintiff prior to the deceased's death was binding.

The court considered the evidence and submissions from both parties and found that the deceased had made a statement of intention as to the disposition of his assets upon his death, which was not followed. The court held that the deed of release executed by the plaintiff was not binding on her as it did not comply with the requirements of the Succession Act 2006. The court also found that the will was not fair and reasonable, taking into account the length of the marriage, the plaintiff's contributions to the marriage, and the lack of any benefaction for the plaintiff. The court ordered that the plaintiff was entitled to a provision out of the estate, and the estate was to be distributed accordingly.

The court's decision highlights the importance of considering the contributions of a spouse to a marriage when determining family provision claims. The court also emphasised the need for any deed of release to comply with the requirements of the Succession Act 2006 to be binding. The final orders of the court were that the plaintiff was entitled to a provision out of the estate, and the estate was to be distributed accordingly.

Orders