Legal Research
Cases
Di Mauro v Sciara

Di Mauro v Sciara

Case [2015] NSWSC 1796 1 December 2015

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Di Mauro v Sciara; Estate of the late Rosario Sciara [2015] NSWSC 1796
Hearing dates: 23 & 24 November 2015
Decision date: 01 December 2015
Jurisdiction: Equity
Before: Stevenson J
Decision:
Provision of $100,000 to be made for plaintiff from deceased’s estate

Catchwords: SUCCESSION – family provision – claim by estranged adult daughter – excluded as beneficiary because deceased believed she had not shown him the love, affection and respect to which he believed he was entitled – estrangement over many years – reason for estrangement – whether no provision was adequate – what provision should be made
Legislation Cited: Family Provision Act 1982 (NSW)
Property (Relationships) Act 1984 (NSW)
Succession Act 2006 (NSW)
Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW)
Cases Cited: Andrew v Andrew [2012] NSWCA 308
Ciric v Ciric [2015] NSWSC 313
Doshen v Pedisich [2013] NSWSC 1507
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Gersbach v Blake [2011] NSWSC 368
Gorton v Parks (1989) 17 NSWLR 1
Hunter v Hunter (1987) 8 NSWLR 573
Keep v Bourke [2012] NSWCA 64
Lajcarova v Todorov [2011] NSWSC 522
Manuel v Lane [2013] NSWCA 61
McKenzie v Topp [2004] VSC 90
Nowak v Beska [2013] NSWSC 166
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Phillips v James [2014] NSWCA 4; 85 NSWLR 619
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; 107 CLR 9
Salmon v Osmond [2015] NSWCA 42
Singer v Berghouse (No 2) [1994] HCA 40; 181 CLR 201
Verzar v Verzar [2014] NSWCA 45
Category: Principal judgment
Parties: Josephine Di Mauro (Plaintiff)
Carmelo Sciara (First Defendant)
Giuseppe Sciara (Second Defendant)
Carlo Sciara (Third Defendant)
Representation:
Counsel:
L J Ellison SC with J Brown (Plaintiff)
B J Skinner (Defendants)
Solicitors:
Slater & Gordon Lawyers (Plaintiff)
Kennedys Law Firm (Defendants)

File Number(s): SC 2014/340988

Judgment

Introduction

This is a claim for family provision by Giuseppa (known as Josephine) Di Mauro in respect of the estate of her late father, Rosario Sciara (“the Deceased”).
The Deceased died on 17 November 2013, aged 88.
He was survived by his five adult children:

Gioacchino (known as Jack), who is aged 62;

the plaintiff, who is aged 60;

Carmelo, who is aged 58;

Giuseppe (known as Joe), who is aged 52; and

Carlo, who is now 50.

The Deceased’s wife, Concetta, died in 1975.
I will refer to the plaintiff and her brothers by their first names. I do so for convenience and without intending disrespect to any of them.
By his will dated 9 February 2004, the Deceased left his whole estate to Carmelo, Joe and Carlo. They were appointed his executors. He made no provision for Jack or Josephine.
In his will, the Deceased said:

“6. I am not gifting anything to my son [Jack] because I have already made gifts to him during my lifetime including my interests in a block of land…

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.

Continue reading Di Mauro v Sciara

Details

AGLC: Di Mauro v Sciara [2015] NSWSC 1796
Case: [2015] NSWSC 1796
Decision Date: 01 December 2015

CaseChat Overview and Summary

The parties involved in this case were Di Mauro, the applicant, and Sciara, the respondent. Di Mauro sought family provision from the estate of her estranged father, who had passed away. The respondent, Sciara, contested the claim. The court was asked to decide whether the deceased's decision to exclude the applicant from his will due to the estrangement was reasonable and whether the applicant should receive any provision from the estate. The case was heard in the Supreme Court of New South Wales.

The primary legal issue was whether the deceased's decision to exclude the applicant from his will because of their estrangement was reasonable. The court had to determine if the applicant's exclusion was justified and whether the respondent should make any provision for the applicant. Another issue was the appropriate amount of provision, if any, to be made for the applicant. The court considered the nature of the estrangement, the reasons behind it, and the applicant's contributions to the estate.

The court found that the deceased's decision to exclude the applicant from his will was not unreasonable, given the estrangement and the deceased's belief that the applicant had not shown him love, affection, and respect. However, the court also recognised that the estrangement was not entirely the applicant's fault, as it was partly due to the deceased's actions. The court held that the applicant was entitled to some provision from the estate, considering the deceased's wealth and the applicant's contributions. The court ordered that the applicant should receive a portion of the estate, though it was not specified in the summary.

The court's final order was that the applicant would receive a specified amount from the estate. This decision recognised the estrangement between the parties but also acknowledged the applicant's entitlement to some provision. The court's ruling balanced the deceased's wishes with the applicant's contributions and the overall circumstances of the case.

Orders