Estate Raineri - [2016] NSWSC 489

Supreme Court

New South Wales

Medium Neutral Citation: Estate Raineri [2016] NSWSC 489
Hearing dates: 21 April 2016
Date of orders: 22 April 2016
Decision date: 22 April 2016
Jurisdiction: Equity - Family Provision List
Before: Lindsay J
Decision:
Two applications for family provision relief (one by an adult daughter, the other by an adult son) both dismissed in circumstances in which each applicant was allowed 20% of their mother’s estate (with an estimated value of $1.8 million), the remaining 60% given to a third adult child by the will of the deceased

Catchwords: SUCCESSION – Family Provision – Requirement for adequate and proper maintenance - Whether applicant left with insufficient provision – Claims by adult children – Court not satisfied applicants left without adequate provision – Applications for family provision relief dismissed
Legislation Cited: Succession Act 2006 NSW
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656)
Comernik v Reholc [2012] NSWSC 1537)
Gorton v Parks (1989) 17 NSWLR 1 at 9B-C
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 11
Smith v Johnson [2015] NSWCA 297
Texts Cited: -
Category: Principal judgment
Parties: First Plaintiff: Angela Silvestro
Second Plaintiff: Giuseppe Raineri
Defendant: Filippo Raineri as Executor of the Estate of Carmela Raineri, Deceased
Representation:
Counsel:
Plaintiffs: L Ellison SC
Defendant: JD Beck
Solicitors:
Plaintiffs: Vizzone Ruggero Twigg Lawyers
Defendant: Egisto Solicitors

File Number(s): 2015/00139814

Judgment

INTRODUCTION

Before the Court is an application for family provision relief (under chapter 3 of the Succession Act 2006 NSW) by each of two of the three adult children of a deceased person whose estate (with an estimated net value of $1.8 million, excluding the costs of the proceedings) has as its principal asset the deceased’s former home in Moala Street, Concord West.
The monetary value of the estate crystallised recently when, on 16 April 2016, the deceased’s former home sold at auction for $1.84 million, on terms that provide for completion within 10 weeks of the exchange of contracts on the day of the auction.
Carmela Raineri (“the deceased”) died on 7 February 2015, aged 81 years, leaving a will dated 24 March 2014, probate of which was granted to the defendant (a son, the second of her three children) on 20 April 2015.
The deceased’s husband, the father of her three children, predeceased her, in 2009.
The deceased’s will effectively divides her estate between the plaintiffs (each given a 20% share) and the defendant, given a 60% share.

THE PLAINTIFFS’ APPLICATIONS FOR FAMILY PROVISION RELIEF

The plaintiffs’ applications for family provision relief have been made by a single summons filed on 11 May 2015, well within the 12 month time limit prescribed by the Succession Act 2006, section 58(2).
Each of the plaintiffs, respectively a daughter and a son of the deceased, is an “eligible person” within the meaning of section 57(1)(c) of the Succession Act. Accordingly, each satisfies the prerequisite for the making of a family provision order found in…

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 Raineri

Details

AGLC: Estate Raineri [2016] NSWSC 489
Case: [2016] NSWSC 489
Decision Date: 22 April 2016

CaseChat Overview and Summary

The case of Estate Raineri involves the distribution of the estate of the deceased, Raineri, and the claims made by his adult children for family provision relief. The children sought an order for adequate and proper maintenance from the estate, arguing that they had been left without sufficient provision. The matter was heard in the Supreme Court of Victoria. The legal issues before the court were whether the applicants had been left without adequate and proper maintenance and whether their claims should be satisfied by the estate.

The court considered the applicable statutory provisions under the Family Provision Act and the relevant case law. It examined the financial circumstances of the deceased at the time of his death, including his income, assets, and liabilities. The court also assessed the financial needs and circumstances of the applicants, taking into account their ages, employment status, and any contributions they had made to the deceased's estate. The court concluded that the deceased had made adequate and proper provision for the applicants, and that the applicants were not left without adequate and proper maintenance. The court was not satisfied that the applicants' claims should be met by the estate.

Consequently, the court dismissed the applications for family provision relief. The court found that the deceased had taken into account the needs of his adult children in making his will and that the estate was sufficient to meet the reasonable needs of the applicants. The court determined that the applicants had not demonstrated that they were left without adequate and proper maintenance and that their claims should be rejected. The final orders of the court were that the applications for family provision relief be dismissed.

Orders