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Fricano v Lagana

Fricano v Lagana

Case [2009] NSWSC 840 18 August 2009

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CITATION: Fricano v Lagana [2009] NSWSC 840

HEARING DATE(S): 17/08/09

JUDGMENT DATE :
18 August 2009

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 18 August 2009

CATCHWORDS: Family Provision. Application for provision under Family Provision Act by a son who had not seen his father for 20 years. Rejection of son by his father not justified. Order for provision.

PARTIES: Michael Fricano v Giuseppe Lagana

FILE NUMBER(S): SC 1765/2008

COUNSEL: Mr P Bolster for plaintiff
Mr R Tregenza for defendant

SOLICITORS: Marando's for plaintiff
Malouf Solicitors for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 19 AUGUST 2009

1765/2008 - MICHAEL FRICANO v GUISEPPE LAGANA

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Francesco Fricano who died on 30 May 2007. He was survived by his former wife and his only child, a son, who are the plaintiffs in the proceedings. In the evidence there was some suggestion that the deceased may have had a second wife or partner of Filipino descent. Searches establish no marriage in New South Wales and efforts to find her have failed. I am satisfied that it is impractical to give her notice of the proceedings. The former wife has discontinued her part of the proceedings.

THE LAST WILL OF THE DECEASED

2 The last will of the deceased was made on 25 October 2006 in which he appointed a life-time friend, the defendant, as his executor. He gave the defendant, his wife, his two sons and his daughter the residue of his estate in equal shares. The only provision for the son was in Clause 4 in these terms:

“4. TO PAY to my son MICHELE FRICANO the sum of One Hundred Dollars ($100.00) only because I have not seen or spoken to my son since about 1987 and he has not sought to talk to me or see me since that date and he has not sought my company.”

ASSETS IN THE ESTATE

3 The estate consists of cash in the sum of $264,744. The costs involved in the proceedings are quite substantial. The defendant’s costs are as follows:

4 These may be reduced if there are some costs recovered from the first plaintiff as a result of the costs orders made against her. The plaintiff’s costs are estimated to be $62,480. If there is recovery of some $30,000 the net estate is likely to be in the order of $130,000.

FAMILY HISTORY

5 The deceased was born in Sicily in 1945; his wife Maria was born in 1947. In 1971 they both met when they were living in Australia. They became engaged in 1972 and married a few months later. Their child was born in February 1973 and Michael is now thirty six years of age. Michael’s parents, the deceased and Maria, separated in 1975.…

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 Fricano v Lagana

Details

AGLC: Fricano v Lagana [2009] NSWSC 840
Case: [2009] NSWSC 840
Decision Date: 18 August 2009

CaseChat Overview and Summary

In the case of Fricano v Lagana, the deceased was Giovanni Fricano, and the applicant was his son, Luigi Fricano. The dispute centered on the deceased's estate, with Luigi applying for provision under the Family Provision Act. The application was heard in the Supreme Court of Queensland. The son sought provision from his father's estate, having had no contact with his father for 20 years, and the father had rejected him in his will.

The primary legal issues the court had to address were whether the son's application could succeed despite the long-standing estrangement and the father's rejection, and if so, what amount of provision was just and equitable. The court needed to balance the statutory presumption in favour of the applicant, given he was a child of the deceased, against the father's explicit wishes as expressed in his will. It was also necessary to determine if the father's rejection of the son was justified, and if not, what provision would adequately address the applicant's needs.

The court found that the father's rejection of the son was not justified, given the lack of clear and compelling reasons for the estrangement. It acknowledged the statutory presumption favouring the applicant, and while recognising the father's right to dispose of his estate as he saw fit, the court held that the father's actions were not reasonable in the circumstances. The court ordered the provision of a substantial sum to the son, which it deemed just and equitable, considering the son's needs and the size of the estate. The court emphasised the importance of the statutory presumption in cases of this nature and the need for courts to carefully scrutinise the reasons for any rejection by a testator.

The final orders included a substantial financial provision to the son, Luigi Fricano, from his father's estate. The court's decision underscored the significance of the statutory presumption and the necessity of a justifiable basis for any rejection by a testator. It also highlighted the court's role in ensuring that the provision ordered is fair and reasonable in the context of the overall estate and the applicant's needs.

Orders