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…
Keep reading for free
Create a free CaseChat account to read Colosi v Colosi and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2013] NSWSC 1892
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.