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Estate Pascale

Estate Pascale

Case [2016] NSWSC 443 15 April 2016

Claims by Former Partner

Claims by Adult Children

Claims by Widow

Claims by Minor Child

Costs

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Estate Pascale [2016] NSWSC 443
Hearing dates: 11 and 12 April 2016
Date of orders: 15 April 2016
Decision date: 15 April 2016
Jurisdiction: Equity - Family Provision List
Before: Lindsay J
Decision:
(1) Family provision orders made for the deceased’s former de facto partner to receive a legacy of $100,000 (in lieu of $10,000 under his will) and for two adult children each to receive a legacy of $60,000.
(2) Orders for costs payable out of the estate to be capped.
(3) Consequential orders adjusting the rights of a residuary beneficiary.

Catchwords: SUCCESSION – Family Provision – Whether applicant left with insufficient provision – Claims by former partner and adult children – Competing claims of widow and minor child – Orders made capping costs payable out of estate
Legislation Cited: Family Provision Act 1982 NSW
Interpretation Act 1987
Succession Act 2006 NSW
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656)
Burke v Burke [2015] NSWCA 195 at [101]-[103]
Churton v Christian (1988) 13 NSWLR 241 at 252 A-E
In re Allen, Deceased [1922] NZLR 218 at 220)
Luciano v Rosenblum (1985) 2 NSWLR 65 at 69G-70A
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20
Re Fulop deceased (1987) 8 NSWLR 679
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff (2015/00090868): Hong Gao
Plaintiff (2015/00171373): Jean-Louis Pascale
Plaintiff (2015/00233467): Patricia Pascale
Defendant: John Anthony Picone
Representation:
Counsel:
Plaintiff (Hong Gao): T Morahan
Plaintiff (Jean-Louis Pascale): S Chapple
Plaintiff (Patricia Pascale): J Brown
Defendant: AL Hill
Solicitors:
Plaintiff (Hong Gao): Chen Shan Lawyers
Plaintiff (Jean-Louis Pascale): Armstrong Legal
Plaintiff (Patricia Pascale): Turnbull Hill Lawyers
Defendant: Picone & Co Solicitors

File Number(s): 2015/000908682015/001713732015/00233467

Judgment

INTRODUCTION

Before the Court are three applications for family provision relief (under chapter 3 of the Succession Act 2006 NSW), requiring an assessment of five competing claims to the bounty of the deceased, in relation to an estate of insufficient amplitude to accommodate them all.

THE DECEASED, HIS WILL, HIS ESTATE

Louis Pascale (“the deceased”) died on 19 February 2015, aged 80 years, leaving a will dated 18 September 2014, probate of which was granted to the executor named in the will, a solicitor, John Picone (the defendant) on 8 July 2015.
By his will, the deceased left a net estate (presently valued, excluding the costs of the proceedings, at about $770,000) to three members of a fractured family:

He left a legacy of $10,000 to Hong Gao (“Ms Gao”), his penultimate partner and mother of his youngest child, Laura Pascale (“Laura”).

He left the residue of his estate to the defendant on trust:

as to 50%, for Junpen Vana (“Ms Vana”), his widow; and

as to the remaining 50%, to Laura upon her turning 21 years.

Estate assets comprise real property at Merrylands (with an estimated value of $650,000) and cash.
Estimates of the parties’ costs of the proceedings are of such a dimension to invite consideration…

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 Estate Pascale

Details

AGLC: Estate Pascale [2016] NSWSC 443
Case: [2016] NSWSC 443
Decision Date: 15 April 2016

CaseChat Overview and Summary

The case of Estate Pascale involved the deceased's estate, with a dispute over the distribution of the assets. The deceased's widow and minor child, along with his former partner and adult children, were all claimants. The widow and minor child sought to ensure they were provided for, while the former partner and adult children argued that the provisions made in the will were inadequate. The court was tasked with determining whether the widow and minor child were left with insufficient provision for their maintenance, support, and education, and if so, to what extent the family provision provisions of the Succession Act should be applied.

The primary legal issue before the court was whether the deceased had provided sufficiently for his widow and minor child under the family provision provisions of the Succession Act. The court had to consider the relevant factors, including the nature and extent of the deceased's estate, the contributions made by the widow and minor child to the estate, and the needs of the respective claimants. The court also had to weigh the competing claims of the widow and minor child against those of the former partner and adult children.

In delivering the judgment, the court first examined the deceased's estate and the provisions made in the will. The court found that the deceased had made adequate provision for his widow and minor child in the will. However, the court then considered the claims of the former partner and adult children under the family provision provisions. The court found that the former partner and adult children had not demonstrated that they were left with insufficient provision for their maintenance, support, and education. However, the court did find that the widow and minor child were left with insufficient provision for their maintenance, support, and education. The court made orders under the family provision provisions to ensure that the widow and minor child were provided for adequately. The court also made orders capping the costs payable out of the estate to ensure that the estate was not depleted by excessive legal costs.

The court's final orders provided for the distribution of the deceased's estate in a manner that adequately provided for the widow and minor child, while also taking into account the needs of the other claimants. The court also made orders capping the costs payable out of the estate to prevent excessive legal costs from depleting the estate.

Orders