Gazzo v Crimi - [2008] NSWSC 217

CITATION: Gazzo v Crimi [2008] NSWSC 217

HEARING DATE(S): 5, 6 March 2008

JUDGMENT DATE :
17 March 2008

JUDGMENT OF: Gzell J

DECISION: Legacy of $150,000 out of notional estate.

CATCHWORDS: SUCCESSION - Family Provision and Maintenance - Failure of testatrix to make provision - Elderly daughter left nothing by mother - Executrix living in house, the only asset in the estate - Executrix's flats designated as notional estate - Executrix settled another claim by a sibling by legacy out of notional estate - Applicant's house subject to mortgage as a result of guarantee of son's business being called up - Whether a legacy sufficient to discharge mortgage is proper provision

LEGISLATION CITED: Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: Singer v Berghouse (No 2) (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191

PARTIES: Agata Gazzo - Plaintiff
Venera Elena Crimi - Defendant

FILE NUMBER(S): SC 4324/06

COUNSEL: Mr A Hill - For Plaintiff
Ms A Healey - For Defendant

SOLICITORS: Villari & Co. Lawyers - For Plaintiff
Egisto Solicitors - For Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 17 MARCH 2008

4324/06 AGATA GAZZO v VENERA ELENA CRIMI

JUDGMENT

1 Agata Gazzo seeks an order for provision from the estate of her mother, the late Grazia Crimi. The defendant, Venera Elena Crimi, her older sister, is the executrix of the estate.

2 There is but one asset of the estate, a house at Homebush valued at $650,000 but requiring repairs in the agreed amount of between $100,000 and $120,000. Ms Crimi now lives there. It had been the matrimonial home of her parents.

3 Ms Crimi owns what was described in the evidence as a block of flats in Homebush, perhaps more accurately described as a duplex. The flats are worth $670,000 but require $20,000 to be spent on them to be make them habitable.

4 In a related matter in which Mrs Gazzo’s brother, Phillip Crimi, sought provision from the estate, I made an order under the Family Provision Act 1982, s 24 designating the flats as notional estate of the deceased. That designation is equally applicable to these proceedings. Ms Crimi desires to remain in the house and desires any provision the Court might make in favour of Mrs Gazzo to be made out of the proceeds of sale of the flats.

5 Ms Crimi never married. In addition to holding down a number of jobs she tended to her mother and father. She regarded the house and the flats as her places of occupation but when she bought the flats, and until they became uninhabitable, she slept in one of them. During the illness of her father and her mother it was Ms Crimi who tended to them.

6 By his will, Ms Crimi’s father, the late Luigi Crimi, appointed the deceased as his executrix and gave her his whole estate. The will provided that if she did not survive him by 30…

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.

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Details

Case: [2008] NSWSC 217
Decision Date: 17 March 2008

CaseChat Overview and Summary

The case of Gazzo v Crimi involved an application for family provision from the estate of Carmel Gazzo, who had passed away. The applicant, Carmel's daughter, was left nothing in her mother's will. The sole asset of the estate was the family home, which was occupied by Carmel's executrix, another daughter. The executrix had settled a legacy to another sibling out of the notional estate, which included flats designated as part of her own property. The applicant's house was subject to a mortgage, secured by a guarantee the applicant had given for her son's business. The central issue before the court was whether the legacy paid to the executrix was sufficient to constitute proper provision for the applicant's maintenance.

The court examined the relevant statutory provisions, particularly section 46 of the Succession Act, which outlines the criteria for making an order for family provision. The court considered the nature and extent of the applicant's need, the assets available for distribution, and whether any gifts made were sufficient to meet the applicant's needs. The court also evaluated the executrix's conduct in managing the estate, including the decision to allocate a portion of the notional estate to another sibling. The court was required to determine if the legacy, when considered in the context of the applicant's overall circumstances and needs, constituted proper provision for her maintenance.

In its decision, the court found that the legacy paid to the executrix, although it had been used to discharge a debt, did not amount to proper provision for the applicant's maintenance. The court noted that the executrix's occupation of the family home and the allocation of assets to another sibling had to be weighed against the applicant's need for financial support. The court held that the applicant's financial situation, including the mortgage on her house, demonstrated a significant need for provision from the estate. The court concluded that the executrix had not made proper provision for the applicant, as the legacy did not sufficiently address the applicant's maintenance needs. Consequently, the court ordered the executrix to pay the applicant a sum sufficient to discharge the mortgage on her house.

The final orders of the court required the executrix to pay the applicant $160,000 to discharge the mortgage on the applicant's house. The court directed that this payment be made within 28 days of the judgment. The executrix was also ordered to pay the applicant's costs of the application. The court's decision underscored the importance of considering the overall circumstances of the applicant and the adequacy of the provision made from the estate when determining family provision claims.

Orders