Girotto v Girotto

[2025] NSWSC 616

Supreme Court

New South Wales

Medium Neutral Citation:

Girotto v Girotto [2025] NSWSC 616

Hearing dates:

19 and 20 May 2025

Date of orders:

16 June 2025

Decision date:

16 June 2025

Jurisdiction:

Equity

Before:

Kunc J

Decision:

Plaintiff’s claim for additional provision dismissed

Catchwords:

SUCCESSION — Family provision — Claim by adult child — Two adult sons in dispute over mother’s estate — Mother’s clear and rational intention to leave most of her estate to one of her sons in preference to the other

Legislation Cited:

Succession Act 2006 (NSW) s 59

Cases Cited:

Angius v Angius [2025] NSWCA 113

Bassett v Bassett [2021] NSWCA 320

Burke v Burke [2015] NSWCA 195

Kouroutis v Kouroutis [2023] NSWSC 608

Leverton v Prendy [2024] NSWSC 1683

Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474

Rada v Smith [2024] NSWSC 273

Tarbes v Taleb [2023] NSWSC 565

Category:

Principal judgment

Parties:

Maurisio Giacomo Girotto (Plaintiff)
Emanuel Dante Girotto (Defendant)

Representation:

Counsel:
L Sewell (Plaintiff)
L Ellison SC (Defendant)

Solicitors:
ALA Law (Plaintiff)
Galluzzo Lawyers (Defendant)

File Number(s):

2023/366170

Publication restriction:

Nil

JUDGMENT

Summary

1. These proceedings concern the estate of the late Bertilla Girotto, who died on 18 November 2022 at the age of 90. She made her last will a few days earlier, on 7 November 2022. Bertilla’s husband, Luigi, predeceased her in 1997.

2. Bertilla and Luigi had two sons: the plaintiff, Maurisio, who is 63, and the defendant, Emanuel Dante, who is 59. There is now no love lost between the two brothers. Without intending any disrespect, the Court will refer to the members of the Girotto family by their given names.

3. There was no dispute that Dante’s moral claim on Bertilla’s testamentary bounty was greater than Maurisio’s. Bertilla left her estate to Dante, with the exception of a specific legacy of $300,000 to Maurisio. By an amended summons dated 12 May 2025 Maurisio seeks an order for further provision from the estate pursuant to s 59 of the Succession Act 2006 (NSW). There was no dispute that Maurisio is an eligible person under the Act.

4. Bertilla could have left more than the legacy to Maurisio while still making proper provision for Dante. She chose not to do so for reasons which she made abundantly clear in extensive notes made in circumstances where her clarity of mind cannot be seriously doubted. The questions in this case are whether the legacy was not adequate provision for Maurisio (s 59(1)(b) of the Act) and, if not, what order for provision should be made (s 59(2) of the Act).

5. For the reasons which follow, the Court is not satisfied that the legacy was not adequate provision for Maurisio. In summary, this is because the legacy meets Maurisio’s demonstrated need for an amount to supplement his superannuation and provide a buffer against contingencies. However, if this conclusion be wrong, the Court would still not exercise its discretion to order further provision primarily because it is satisfied that Bertilla’s testamentary intentions should be respected.

6. Ms L Sewell of Counsel appeared for Maurisio. Mr L Ellison SC appeared for Dante.

The will and estate

7. By her will, Bertilla appointed Dante as the sole executor of her estate. He has obtained a grant of probate. Maurisio was left the legacy of $300,000. The residue of the estate was left in its entirety to Dante. The will included a contingency provision whereby if Dante predeceased her, Dante’s portion of the estate would go to his children, and if there be no children, it would be divided between his wife, and Bertilla’s sister in Italy. At the time of Bertilla’s death, Dante had neither a wife nor children.

8. The majority of the estate comprised of two adjoining properties in Bossley Park, one valued at $1,400,000 and the other valued at $900,000. One of these properties was where Bertilla had lived with Dante for his entire life. There was also a bank account of $5,260.81. The combined value of the estate was $2,305,260.81.

9. There was also available notional estate: a further bank account which Bertilla held as joint tenant with Dante, which contained $301,029.16; and $1,080,000 being the proceeds of a sale on 20 April 2022 of a third adjoining property at Bossley Park. These amounts brought the value of the estate to a gross amount of $3.6 million dollars.

Maurisio’s claim and circumstances

10. When asked in cross-examination about the reasons for bringing the claim, Maurisio initially stated that he wanted “some answers” (Tcpt, 19 May 2025, p 56(33)). The answers to what was not made clear. When pressed, he then stated he wanted “his share” of the estate in an amount that would be “fair”. This was eventually stated to be 50% of the estate, including the proceeds of the sale of the third property (Tcpt, 19 May 2025, p 57(14)).

11. Maurisio’s evidence included details of several properties which he had provided to his solicitors as examples of properties he would like to buy. Each property was on acreage and valued at $2,000,000 or more. One such property was advertised as available for offers above $3,500,000 and was a 15.25 hectare property with a seven bedroom dwelling. Another property was advertised as between $2,750,000 and $2,900,000 and had a five bedroom house. Maurisio accepted in cross-examination that these properties were not what he needed. Particularly, he accepted that he did not require either five or seven bedrooms, and that he has not been taking steps to maintain his current home or property for 20 years (Tcpt, 19 May 2025, p 59(12)).

12. During the course of address, Ms Sewell handed up a document which was titled ‘Wish List’:

“Wish List

Discharge mortgage                $151,282

Pay out overdraft                   $129,709

Loan to Lloyd Hutchen               $60,000

Loan to Arthur Stewart                                 $18,000

Payment of burial plot                   $33,009

CBA Credit card                                            $1400

Mitsubishi Truck finance                               $42,000

TOTAL DEBT                                                $435,400

Purchase of small acreage                           $1,000,000 to $1,700,000

Purchase new truck for work                         $200,000

Superannuation & buffer for contingencies   $300,000

Fund for health needs                $100,000

TOTAL                                                           $2,035,400 to $2,735,400

Seeking

Transfer of vacant lot (X XX Road) in specie

Or in range $800,000 to $1,000,000 in lieu of provision under the will”

13. Ultimately only the items set out above in italics were pressed.

14. Maurisio is a 63 year old widower with one adult son, Aaron. Maurisio is a qualified heavy vehicle mechanic and is a director of both Bulk Haulage Australia Pty Ltd and BHA Muller Pty Ltd. His evidence was that his monthly business turnover is $40,000. For the 2022 financial year Maurisio’s taxable income was $155,000 and $197,688 for the 2023 financial year. Maurisio has $256,628 in superannuation and $108,500 in the bank. He also has several vehicles, valued at approximately $127,000.

15. In cross-examination, Maurisio agreed that he owns the block of land on which he lives (Tcpt, 19 May 2025, p 45(21)). Maurisio tendered an appraisal of between $1,000,000 and $1,100,000 as the value of his property. A valuation of that land was tendered on behalf of Dante that the market value was $1,950,000. Maurisio accepted in cross-examination that this amount was what his property might sell for (Tcpt, 19 May 2025, p 55(50)). Maurisio gave evidence that no significant money had been spent on the property, including fencing and guttering, for nearly 20 years, because of his as yet unfulfilled hope that the property would be bought by a developer (Tcpt, 19 May 2025, p 55(36)). The Court finds that the current market value of Maurisio’s property is $1,950,000.

16. There is a mobile home on the property, which was bought for $27,500. There is no evidence as to the current value of the mobile home. The ownership of this mobile home is unclear. Maurisio’s evidence under cross-examination was that the mobile home was purchased by his son, Aaron (Tcpt, 19 May 2025, p 51(44)). While Aaron never lived in the mobile home, Maurisio’s evidence was that he could have it back if he ever asked for it (Tcpt, 19 May 2025, p 52(2)). This is despite it requiring a crane to be moved (Tcpt, 19 May 2025, p 51(16)) and it being connected to water, electricity and sewage (Tcpt, 19 May 2025, p 77(5)). However, in his affidavit dated 2 May 2025, Maurisio deposes that his late wife, Lauren, paid Aaron part of the initial purchase price and later paid him the balance. As Maurisio was the executor and beneficiary of her estate, to the extent it is relevant the Court concludes that the mobile home is an asset of Maurisio, whether it be a fixture or a chattel.

17. Maurisio’s friend Arthur Stewart lives in the mobile home, while Maurisio’s stepson John Morrison lives with him in the main dwelling. Although neither pays rent to Maurisio, each of them does some general gardening and property maintenance.

18. Maurisio deposed that he had debts totalling $300,000, and that his monthly expenses are $16,568. Ms Sewell accepted this was not a case where Maurisio is currently unable to meet his ordinary living expenses or other financial obligations.

19. Maurisio has atrial fibrillation and had a heart attack in April 2022. He has an enlarged prostate and suffers from vertigo. Maurisio has some degree of degenerative back disease that includes a L4 to L5 disc protrusion with disc degeneration. He also asserted that he will require bilateral knee replacement surgery in the future.

Dante’s circumstances

20. Dante’s circumstances were not put in issue in answer to Maurisio’s claim. However, it is necessary to say something about them to understand why Bertilla left all but the legacy to Dante. Dante is 60 years old and has never married or had children. He has lived his entire life at one of the properties with his parents and continues to reside there. Dante has a heavy vehicle license, but no other formal qualifications (Tcpt, 20 May 2025, p 113(15)). He had worked as a truck driver in a business with Maurisio until the breakdown of their relationship.

21. Dante gave evidence that he lives off the interest earned on the $300,000 that he shared with Bertilla as joint tenants, because he does not have a job or other source of income (Tcpt, 20 May 2025, p 110(31)). He further gave evidence that he has no superannuation (Tcpt, 20 May 2025, p 113(29)).

Maurizio’s credit

22. Maurisio’s propensity to anger was an issue in the proceedings. He was cross-examined. He presented in the witness box as calm and reasonable, but unnaturally or exaggeratedly so. Maurisio rejected Mr Ellison SC’s suggestion that he had a short fuse (Tcpt, 19 May 2025, p 65(23)). However, my impression of him, fortified by his diary entries (see [34]-[36], [41]-[42] and [50] below), is that he is a man with a short fuse who was doing his best to present otherwise. It was unconvincing. More generally, Maurisio presented as a witness who was reluctant to say or accept anything that might be contrary to his interests. The Court would not prefer his evidence to Dante’s evidence or Bertilla’s notes (see [53], [56]-[57] below), unless the evidence was against Maurisio’s interest or corroborated independently.

Dante’s credit

23. Dante was also cross-examined. At various point in his evidence, he became angry and emotional. He did not attempt to disguise the anger and frustration he felt towards his brother over how he perceived Maurisio had treated him. However, that emotion struck me as entirely genuine and I formed the view that Dante was an honest witness, who was doing his best to tell the truth, irrespective of its consequences in the case. The Court accepts his evidence.

Bertilla

24. The Court had the advantage of more independent evidence about Bertilla than is often the case in relation to testators in family provision matters. The evidence is relevant because an important part of Maurisio’s case was that Dante had somehow persuaded Bertilla that Maurisio was the one at fault for the falling out between the brothers. Dante said of Bertilla that she was “an independent woman” (Tcpt, 20 May 2025, p 100(12) and Tcpt, 20 May 2025, p 128(27)) and that he did not have to express anything to her, as she “had eyes for herself” (Tcpt, 20 May 2025, p 126(40)). The Court accepts this characterisation of Bertilla up to and including when she made the will by reason of the:

1. Police video;

2. Bertilla’s notes; and

3. Independent observations.

Police video

25. A video was tendered which was recorded by the police on 28 February 2021 when taking a statement from Bertilla (with Dante present) at her home after an incident when Maurisio (to put it neutrally) sought to gain admittance to the house at a time when Bertilla and Dante were inside. The recording runs for approximately 30 minutes. Bertilla was giving her responses in Italian through an interpreter who was on the police officer’s phone. Even to someone who did not speak Italian it would have been apparent from her manner and demeanour that Bertilla was alert and intelligent in her responses. Her answers, as interpreted, were consistent with that conclusion.

Bertilla’s notes

26. Several documents were tendered which were handwritten by Bertilla in Italian. This included a seven page note dated 25 May 2022, and two handwritten notes dated 6 November 2022 (the day before she made the will) which all explained her reasons for dividing the estate as she did. Extracts are set out in [53] and [56] to [57] below. There was also a two page handwritten document which provided answers to questions Bertilla was asked by her solicitors about the estate. Quite apart from the quality or sophistication of their content, the notes were written in a clear and strong hand, belying her age.

Independent observations

27. The Court had the benefit of evidence from both Bertilla’s solicitor Mr Vince Galluzzo and an interpreter, Mr Tony Cavallero. Mr Galluzzo gave evidence that despite not being able to read Italian fluently, “all I could tell with the notes was that her writing was magnificent” (Tcpt, 19 May 2025, p 19(49)). When asked about how she spoke, Mr Galluzzo gave the following evidence:

“HIS HONOUR

Q. Sir, apart from forming a view as to the quality of her handwriting, is your grasp of written Italian sufficient for you to form a view as to the quality of her Italian?

A. Yes, the quality of her Italian, she’s--

Q. What view did you form as to the quality of her Italian?

A. Well, she basically spoke and wrote the proper Italian.

Q. Yes, classical Italian. This--

A. Yes.

Q. --was not the Italian of a peasant?

A. No, and I have to say, that’s a--

Q. I say that with no disrespect to peasants, but the reality is--

A. Yeah.

Q. --some people are better educated than others?

A. Well, there’s people that speak the proper Italian and then there’s all the dialects, and I must admit that I do speak the dialect from where my parents--

Q. But she spoke what you regard as proper Italian--

A. She spoke proper Italian. Yeah.”

28. Mr Galluzzo also stated in his evidence that Mr Cavallero commented to him when Bertilla attended Mr Galluzzo’s office “how good her writing was and how she was aware of everything that was going on” (Tcpt, 19 May 2025, p 39(23)).

29. Mr Cavallero gave the following evidence about when he took Bertilla through her statutory declaration (see [57] below) on 7 November 2022:

“Q. You say that she acknowledged her answers in each paragraph. Is that each paragraph of the statutory declaration?

A. Yes. So far as I remember.

Q. She said, “yes” that that is right?

A. Yes.

Q. Then you say that you tested her knowledge by asking if that was correct?

A. Yes, As far as I remember. Again, yes.

30. In a statutory declaration dated 23 December 2022, Mr Cavallero stated:

“10. I came to the view that she was an intelligent woman, very alert, and very eager to express her views. I felt that she had a very good memory of events and her understanding of the facts we discussed was also very good…

13…I watched her write. I recall being very impressed with her neat handwriting. I said to her “you have beautiful calligraphy” …

23. I was satisfied that she fully understood everything that was spoken and that she understood the Statutory Declaration and her Will before she signed.”

31. Both Mr Galluzzo and Mr Cavallero gave evidence in relation to the making of the will that Bertilla requested additional time to sit and write out her notes in Mr Galluzzo’s conference room, and that they found Bertilla to be coherent in her responses to questions.

Facts

32. Bertilla was born in 1932 and immigrated to Australia from Italy in 1959 with Luigi. They bought seven acres of land in Bossley Park in 1961, which is where Dante lived with his parents and then Bertilla until her death. Italian was the language spoken in the home, with Bertilla not being fluent in English. Maurisio was born in 1961, and Dante was born in 1965. Luigi died in 1997.

33. It was common ground that the two brothers had been in business together, and that their relationship is no longer a good one, although there were differing versions about the origins and depth of the conflict between them. The brothers commenced a partnership in 1993 known as Transdan Haulage. It is undisputed that Dante contributed significant funds towards this partnership and drove a truck. Maurisio conceded in cross-examination that Dante is still owed money by the partnership and that he currently has no realistic prospect of receiving that money (Tcpt, 19 May 2025, p 49(29-36)).

34. Maurisio kept a handwritten diary, from which various entries were tendered in evidence. On 17 November 2001, he wrote, “BIG BLOW UP WITH DAN – HE WANTS $100,000.00 – OFFERED $40,000.00”. Dante deposed that on this date, he asked for the money that he had paid into the partnership to be repaid. In response, Maurisio slapped him across the face and swore at him in front of Bertilla. In his evidence, Maurisio agreed that there was a verbal argument that involved yelling, however, he denied any physical interaction took place (Tcpt, 19 May 2025, p 65(35)). Maurisio also denied that Bertilla was present. Consistently with the Court’s findings as to credit (see [22] and [23] above), the Court accepts Dante’s version of events.

35. On 18 January 2004, Maurisio wrote in his diary, “TOOK DAN’S BELONGINGS (TOOLS) TO MUMS – DAN FINALLY SHOWED UP – PHYSICAL CONFRONTATION – LAUREN WENT BACK TO CHECK ON MUM”. Dante deposed that on this date, Maurisio grabbed, punched and pushed him in the presence of Bertilla. Maurisio accepted in cross-examination that there was a physical altercation between himself and Dante on this date, but claimed it was the only physical altercation they had (Tcpt, 19 May 2025, p 64(16)). Maurisio gave evidence that the altercation began as a verbal one. However, Dante began waving his arms around, and Maurisio defended himself. It was agreed that Bertilla was distressed by witnessing the altercation. The Court again accepts Dante’s version of these events and Maurisio’s concessions that are consistent with Dante’s evidence. Maurisio’s evidence is otherwise rejected.

36. On 8 March 2011, Maurisio wrote “ASKED DAN SOME QUESTIONS ABOUT A JOB CARD AND HE BUNGED ON HIS SHIT. SAID HE WILL GO HOME AND I TOLD HIM IF HE GOES HOME – STAY HOME.” Dante deposed that on this date, he was working in the workshop when Maurisio stormed in and began yelling at him about wages. Dante claims that Maurisio punched him, spat at him, pushed him to the ground, kicked him and used his foot to prevent him from standing up. In cross-examination, Maurisio denied that there was any physical altercation, but did concede that he would have had a raised voice when talking with Dante (Tcpt, 19 May 2025, p 68(8)). The Court accepts Dante’s evidence of this incident and that Maurisio said the words recorded in his diary.

32. Dante deposed that towards the end of 2011, he arrived home at around 9pm and when he stepped out of the car, Maurisio attacked him from behind. Maurisio pushed him to the ground and then followed him inside the house, kicking and punching him. When Bertilla tried to intervene, Maurisio pushed her away and continued to punch the back of Dante’s head until he was unconscious. Maurisio denied that this altercation occurred (Tcpt, 19 May 2025, p 70(24)). The Court accepts Dante’s evidence. It is corroborated by Bertilla’s note set out in [53] below. In doing so, I have not overlooked that Dante accepted in cross-examination about this and other occasions of violence that neither the police nor an ambulance was called. However, I accept Dante’s explanation that Bertilla did not want the authorities involved because of her concern that it would bring public shame on the family. This is consistent with her answer to Question 2 of the statutory declaration set out in [57] below.

33. In September 2012, Dante suffered an aneurysm. Both Dante and Bertilla came to attribute this to the incident at the end of 2011 described in the preceding paragraph.

34. Dante deposed that on 4 October 2016, he tried to speak with Maurisio about selling one of the trucks which was parked at Bertilla’s house. Maurisio attended the home, pushed him and slapped him. Maurisio denied that this altercation occurred (Tcpt, 19 May 2025, p 70(35)). Text messages from Maurisio to Dante on this date read as follows:

“While ever you have others too blame and no responsibility accepted it will always be someone else’s fault. The trucks are owned by Transdan Haulage, not I nor you, we both own the Company and as stated when I sell my house I will buy your half of Transdan Haulage and we can then go on our was.

You hang up because you don’t like the truth, you prefer to listening too what you want too hear from all the gossip.

You can’t sell what ain’t yours, that is stealing.

Yeah, what ever” (Errors in original)

40. Dante evidence was that following this incident, he did not have contact with his brother until January 2021.

41. Maurisio wrote in his diary on 16 December 2016: “MY MOTHER FINALLY RANG. OBVIOUS WHAT HER THOUGHTS ARE. I AM NOT PAYING DAN OUT HIS DEBT AND A TRUCK – GET FUCKED”. During the course of his evidence, Maurisio stated Bertilla called him, saying Dante was upset and she asked him to pay Dante out for the money he had put into the partnership and give him one of the trucks. Maurisio refused. Following this conversation, there was no contact between Maurisio and Bertilla until 2021.

42. On 30 December 2016, Maurisio wrote “AARON INFORMED LAUREN [Maurisio’s wife] THAT THE GIFT SHE SENT WAS REFUSED BY DICKHEAD DAN”.

43. On 18 September 2018, Bertilla made a will. This will appointed Dante as executor and trustee, with Aaron in the alternative should Dante predecease her. The will left one of the three Bossley Park properties to Maurisio with a condition that Dante had the first right to buy the property in the event Maurisio wished to sell it. The rest of the estate was left to Dante, including the property in which Bertilla lived with Dante. In the event either Dante or Maurisio predeceased her, their share would go to Aaron.

44. On 31 January 2021, Maurisio attended the home of Bertilla and Dante. Dante’s version of what occurred is that he was called by Maurisio’s son, Aaron, who told him that Maurisio was on his way to the house and he was very angry about Dante selling their former business’ truck that had been parked at Bertilla’s house. Aaron told them to lock themselves in the house and that “If you think the beating you got when you had the stroke was bad, this will be worse because you sold the truck.” Maurisio came to the house and knocked on the rear door of the house. He then began to slam his fists on the door and was yelling to be let in. He was walking up and down the side of the house, looking through the windows. Aaron then attended the premises and Maurisio left with his son.

45. Maurisio gave evidence that he arrived and knocked on the door, but did not say anything or speak to anyone. He knocked loudly as there is a basement. Maurisio stated that as far as he knew, no one was home but that if someone was home, his knocking would have got their attention (Tcpt, 19 May 2025, p 71(10)).

46. Either way, the undisputed result of this visit was the police being called and Maurisio being charged with two counts of intimidation (one against Dante and one against Bertilla), stalk/intimidate and malicious damage to property. A Provisional Apprehended Domestic Violence Order (ADVO) was made on 1 February 2021 against Maurisio to protect Dante.

47. The police attended the home of Bertilla and Dante on 28 February 2021 to take a statement from Bertilla. This statement was conducted with the assistance of an interpreter on the telephone, and was video recorded. Bertilla stated that around 4pm on 31 January 2021 there was a knocking on the door. The knocking was described as “a violent beating on the door” (Tcpt, 19 May 2025, p 41(45)) and “with fury” (Tcpt, 19 May 2025, p 41(38)). She said Aaron had called saying Maurisio would shortly arrive but she was confused about what he was saying. She said she saw Maurisio through the window, and he looked like he had a “rather stormy attitude and not a calm one”. She stated Dante and herself were frightened and did not open the door. When asked if he said anything while knocking, Bertilla said no. She stated that Maurisio was knocking violently, and this caused a dent in the door. When asked what she had thought would happen if Maurisio was let in, Bertilla said they called the police to try and “avoid the type of experience that had happened two or three times already in the past” (Tcpt, 19 May 2025, p 45(15)). She said it was possible that a physical confrontation may have ensued.

48. The Court accepts Dante’s and Bertilla’s evidence of this event both because of the view I have taken about Dante’s credibility and that Bertilla’s account was given only four weeks after it had occurred.

49. A Final ADVO was made on 12 April 2021 against Maurisio to protect Dante. This occurred in the absence of Maurisio (Tcpt, 20 May 2025, p 89(3)).

50. Bertilla and Dante attended Fairfield Court on 4 May 2022 to give evidence in the proceedings against Maurisio. Maurisio wrote in his diary on that date “COURT! WHAT AN EMBARASSING JOKE OF A DAY – BACK ON JULY 28^TH FOR JUDGEMENT *THE DAY THAT MY MOTHER SHOWED HER TRUE COLOURS AND DREW A LINE IN THE SAND”. In his evidence, Maurisio stated that his mother’s version of events given in court was untrue.

51. Bertilla attended the offices of Mr Galluzzo on 30 May 2022 to have a will prepared. It was executed that day. Under this will, Bertilla appointed Dante the sole executor of her estate. Maurisio was left a legacy of $300,000. The residue of the estate was left in its entirety to Dante, which is the same as the final will but contained no contingency.

52. Mr Galluzzo gave evidence that the meeting was conducted in Italian, which he speaks fluently. Mr Galluzzo asked Bertilla about her relationship with her children and Bertilla told him that she as not making equal provision for them as there was some history between them. She had been advised that she should leave a certain amount to Maurisio, even though she wanted to leave the entire estate to Dante, so that the will would not be challenged. Bertilla asked about whether she needed to leave something to Maurisio and Mr Galluzzo recommended briefing counsel. Bertilla asked Mr Galluzzo to recommend a figure. However, Mr Galluzzo gave evidence that it is not his practice to advise testators on this sort of issue. Mr Galluzzo stated that the figure of $300,000 was suggested by Bertilla, and that figure was discussed again later after counsel had been briefed.

53. At this meeting, Bertilla provided Mr Galluzzo with handwritten notes regarding the provisions she wanted made in the will. These notes were translated from Italian into English and included:

“I remember very clearly something that happened 7 of 8 years ago when I refused to the son Maurizio to sign and stand as a guarantor with my property in favour of the nephew Aaron (his son) 36 years of age (date of birth x/x/x), who in effect did not even need it.

At this point the younger son Dante, better known by this name instead of Emanuele, hastier, firmly opposed this request, intervening in my favour so that I would not fall into this deception as a result, we have fallen into their contempt and hatred which have caused us all sorts of problem since that time. All this hatred has distant origins…

Maurizio never did the right thing with his brother, on the contrary, he even managed to make him hate even by his son Aaron, becoming an ungrateful person like his father, while his uncle always loved him…

I wanted to mention these things because I am sure that they will invent all kinds of things against poor, defenseless (sic) Dante who is left without any of the documents covering the years spent in partnership with him, after having had maximum trust in him as his brother… The only fault that I can give Dante is that of having been too generous, too kind-heated and, what was the worst, always giving too much trust as a brother. He tried them all to be able to save his small business, which was his pride, supporting it to the limit of his strength; so much so that eventually he had to give up. Dejected, demoralized, depressed, destroyed even in his pride and as a last blow, at the age of 47 years and precisely on 24 September 2012, he was also hit by a very serious aneurysm from which he was saved by a miracle…

This last sad experience was undoubtedly caused by a quarrel suffered by his brother Maurizio about 6 months earlier, again for work reasons, who hit him in the head with violent punches that made him fall to the ground, still continuing to hit him with fists and kick. If I did not intervene, he would have killed him…
And so, everything I own I leave to him who after all has always taken care of me, helping me in everything I needed, ever since his father Luigi passed away, back in May 1997, at the age of 76 years. And before he also helped him, during his long illness, dedicating himself to helping us with a generous heart and with passion, even financially, despite his scarce possibilities, without ever asking for anything in return. As I repeat, I will leave everything I have to the most deserving, the most needy and that is to Dante. Not because he is the favorite or because I favored him more than the other; none of this. I, who am his mother, know very well his health conditions and also his economic ones, the result of years of unjust suffering. I will leave him everything I own. I can dispose of my stuff as I see fit, without offending anyone and I hope that no rule of law has the courage to divert or change this desire of mine…

Bertilla Girotto 25/05/2022”

54. On 28 July 2022, Maurisio wrote in his diary “COURT JUDGEMENT * INTIMIDATION – SECTION 10. DAMAGES – NO CONVICTION – 12 MNTH GOOD BEHAVIOUR & 12 MNTH AVO”.

55. Mr Galluzzo gave evidence that Mr Ellison SC was briefed following the 30 May 2022 meeting referred to in [51] above. On Senior Counsel’s advice, a statutory declaration in the form of questions and answers was prepared. Bertilla returned to the office of Mr Galluzzo on 26 October 2022, where she gave further instructions in relation to her will, being the inclusion of a contingency provision.

56. Bertilla returned on 7 November 2022 to sign the will and Mr Cavallero attended on this date to interpret and translate. Bertilla told Mr Galluzzo and Mr Cavallero that she needed further time to complete her notes, and she sat in the conference room in Mr Galluzzo’s office to do so. Those handwritten notes included:

“6/11/1922 [the parties agreed this should be corrected to 2022]…

I beg you, Maurizio, I beg you with my heart. Let your brother Dante leave in peace.

[The following text is crossed out but readable]…

If I left more to Dante is because he deserves it, 100 and more times, and what I have assigned to you is not a small amount; to tell you the truth you wouldn’t even deserve it.

Dante spent all his life to assist his old parents and the family, by devoting himself to the maintenance of the house, to mowing the lawn, to managing the garden and many other things that require time ha (sic) effort;

[End of crossed out text]

Without considering that he has always paid from his own pockets the council rates and other bills of electricity, water, telephone, in spite of his scarce possibilities; he always did all this with heart and passion without ever complaining, or ask anything in exchange.

What I left for him is nothing in comparison with what he would deserve. I repeat, what I have decided for them I did with my sincere and clear will, that, thank God, my mind still works perfectly well; (forgive me if I continue to use the name Dante rather than Emanuele, which would be his first name, because I find it simple and quicker.)

The other son, Maurizio a bludger, not to define him a criminal for the terrible and sinister hate he has always felt for his younger and weaker brother. I remember one sentence, heard from the mouth of his son Aaron who said my father is not happy until he will see him dead and destroyed in the gutter. I cannot understand the reason of so much ferocious hate; jealousy, envy; because he can manage everything better than him? I don’t know!

On evening; 10 years and a couple of months ago; precisely on 24 September 2012. For a trivial discussion regarding the job he attacked his brother punching him on the head and kicking him so that he fell on the ground; if I had not intervened, he could have killed him. From the moment, Dante has not been feeling well, suffering always strong headaches that caused a dangerous aneurism and he almost lost his life”.

(Written by Bertilla Girotto on 7/11/2022)

1st Question. If I will not be able to sell the block because they don’t want to pay what I am asking, will I be able to sell the block and the house to this son also for 1 dollar each, he will manage to pay the stamp duty, whatever it is, and after that it will become his. Can I do this way? As long as I am alive, still mentally perfect, I think I can dispose of my property the way I want, without being pushed or forced by anybody.

All that I can and wish to donate to this son is nothing in comparison with all the love that I have received from him for many years, without ever asking anything in exchange; and before he did it also for his father, who has been sick for many years… Now that I am able to, why shouldn’t I be grateful?

If I leave more to Dante is because he deserves it and also because I need him much more. What I have allocated for his brother Maurizio is no small thing; he should be more than pleased; he wouldn’t even deserve it, because he wouldn’t care less about helping the family.”

57. Bertilla’s statutory declaration, made at the time she executed the will, was in these terms:

“On the 7^th November 2022 I attended a meeting with Vince Galluzzo, Solicitor and Tony Cavallero, Interpreter. The following questions were asked to me

1. Question 1 – What is the situation with your son Maurizio? Answer – Maurizio has treated me and my son Emanuel (Dante) badly for a long time. Maurizio had been asking me for money on many occasions. He has always treated his brother (Dante) badly. There was an incident in about 2012 when he attacked Dante at my home. I was present, I had to break it up. I did not press charges at the time. There were other incidents when I could have called the police due to violence from Maurizio towards his brother, Dante. From the time of the 2012 beating of Dante, he suffered headaches and went to see doctors for treatment. One year later he had a stroke. He was constantly on Panadol after the beating. He did not suffer from headaches in the past. There is currently a Court order against Maurizio that he cannot come to our home. This expires July 2023.

2. Question 2 – How does the situation of violence toward Dante by Maurizio affect you? Answer – I am constantly stressed, I am embarrassed to call the police as I think that they would be saying this is a house full of criminals. I feel very upset that Maurizio treats me and Dante the way he does. On one occasion Maurizio asked me to sign a paper for his in order for him to get a loan. I refused to sign. He said you are stupid and ignorant. He pushed me on the arm. I asked him to leave which he did.

3. Question 3 – Of your two sons, who has helped you financially? Answer – Maurizio left home at the age of seventeen. He has never assisted me and my late husband. He has on many occasions asked for financial help. Dante pays all expenses, taxes, rates, electricity, food out of his own money for me.

4. Question 4 – Why have you left $300,000 in your Will to Maurizio and the residue entirely to Dante? Answer – I felt that I should leave Maurizio something. It is my belief that if I leave him something he will not challenge the Will and not cause Dante any problems after I die. I am hoping that this will stop him doing any bad things to Dante once I die. I think it is a good amount to leave him. Dante has always lived at home. My husband died in 1997. Dante has remained at home with me. He is my carer. He also pays all the bills as I am unable to get the pension due to the property held in my name.

5. Question 5 – Do you wish to leave anything to your grandson? Answer – No. I have only one grandson, Aaron. He has also been violent in my home. On one occasion in late 2021, he hit Dante with a mop handle in the chest. He was also throwing punches, pushed him and spat in Dante’s face. Aaron is nasty like Maurizio. I recall an occasion eighteen or twenty years ago when Aaron asked me to sign a document so that he could get some money from the Government. I think it was in respect to him being a carer. He was never a carer for me. It was always Dante who was my carer. Dante has always looked after me, taken me to doctors and attends to all maintenance around the home. I am not aware of any documents signed for him. I did not have any intention to sign any documents giving anything to him.

6. Question 6 – If Dante gets married and then dies before you leaving no children. What do you wish to happen to his share? Answer – I would leave 25% to his wife, and 75% to my sister.”

58. Mr Cavallero made a statutory declaration on 23 December 2022 which included:

“2. On the 7^th November 2022 at 11:00AM, I attended a scheduled appointment at the offices of Galluzzo Lawyers 26 Castlereagh Street, Liverpool NSW to interpret for Mrs Bertilla Girotto in respect to the taking of an affidavit for her by her solicitor (Vince Galluzzo) and the signing of her Will.

3. Mrs Girotto arrived at her meeting with her son Emanuel Dante Girotto. Her son was asked to wait in the waiting room while Mrs Girotto, myself and her solicitor went to the conference room. Her son was not present during any of the discussions by myself, her solicitor and Mrs Girotto.

4. Mrs Girotto brought in with her an exercise book in which she had written chronicles of her life, relationship with her sons and her reasons for making certain provisions in her Will.

She said that she had attempted to finish these before today’s meeting but that she still had some to do and asked if she could have some time to finish them this morning.

I heard her say to Mr Galluzzo “I have more I would like to write, I need more time”. Mr Galluzzo “we will give you some time throughout the morning”.

5. I asked her some questions about herself. She said “I have two sons. Dante is my carer, Dante is the one here today. My other son is Maurizio. I do not have much time to live. I am here to sign my will and make sure things are done correctly before I go”.

6. In this discussion, I found that she was very talkative. She appeared to me to be in complete control of her thoughts. She appeared to me to be concerned about how things would turn out after she was gone. She said “in this world there are different people, good and bad. I don’t know what I did to deserve what I have been put through”.

7. She advised me of her situation. She said words to the effect:

“There has been friction between my sons going back to 2012 when they were in a business together. Maurizio did the office work, Dante would drive the trucks. The business was going well at first then a dispute arose where Dante questioned Maurizio as to where the money from the business was going. They had an argument following this. Maurizio punched Dante in the head. This happened at my house. I tried to break it up. Dante then had ongoing headaches and a year later had a stroke”…

9. I talked with her whilst Mr Galluzzo had left the room. She said “Maurizio married a woman who already had two children. He then had a son with her. The wife was not friendly with me. I felt she had animosity towards me. I think she transferred this animosity to my grandson (in Italian this is referred to as Nipote). He (Aaron) was also nasty to me, once he said to me “if you fall in the street I hope you die there”. This was after Maurizio asked me for a large amount of money and I refused. This prompted my grandson’s reply. She said to Maurizio “I cannot give you that amount of money”.

She said “I still have affection for Maurizio despite what he has put me through. He is still my son despite everything”.

10. I came to the view that she was an intelligent woman, very alert, and very eager to express her views. I felt that she had a very good memory of events and her understanding of the facts we discussed was also very good. She gave her reasons for what she did in her will throughout this meeting. She said “I am leaving my estate (less $300,000.00) completely to Dante. He is my carer. He has always lived with my husband and me. He looks after maintenance, bills, banking and other things. He has lived with me since my husband died. He has never married and has no children.”

Legal Principles

59. There was no dispute about the applicable legal principles.

60. In Bassett v Bassett [2021] NSWCA 320 at [78]-[88] (Bell P; Leeming and Payne JJA), the New South Wales Court of Appeal summarised what the Court must undertake pursuant to ss 59(1)(c) and 60(2) of the Act, which I respectfully adopt and apply:

“Applicable legal principles

78 Before an order for provision can be made in favour of a child of the deceased (who is an “eligible person” within the meaning of s 59 of the Succession Act), the Court must be satisfied that “adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person”: Succession Act, s 59(1)(c).

79 Satisfaction in this regard is “jurisdictional” insofar as it is a prerequisite to the Court exercising its discretionary power to make an order for provision pursuant to s 59(2): see, for example, as to the use of the description “jurisdictional”, White v Barron (1980) 144 CLR 431 at 456; [1980] HCA 14; Singer at 208–210; Hampson v Hampson [2010] NSWCA 359; (2010) 5 ASTLR 116 at [69]–[72]. Care must, however, be taken when answering this jurisdictional question not to confine the relevant consideration to an applicant’s financial or material needs; the language of “proper maintenance, education or advancement” involves more than simply a question of financial needs: see Sgro v Thompson [2017] NSWCA 326 at [68]–[74] (Sgro).

80 Once the level of satisfaction referred to in [78] has been reached, the Court has a broad discretion, “having regard to the facts known to the Court at the time the order is made” (emphasis added), to make such order for provision out of the estate as ought to be made “for the maintenance, education or advancement in life of the eligible person”: Succession Act, s 59(2).

81 In considering both whether to make a family provision order and the nature of any such order if the threshold required by s 59(1)(c) is satisfied, the Court is entitled to consider the broad range of matters specified in s 60(2) of the Succession Act. The breadth of the matters that may be considered under s 60(2) does not, however, authorise the making of an order which is for a purpose other than “the maintenance, education or advancement in life of the eligible person”. Nor does it relieve the Court of the need to make the order “having regard to the facts known to the Court at the time the order is made” (emphasis added).

82 The primary judge’s summary of relevant principles, as noted at [59] above, was not challenged. It is convenient to add a reference to McCosker v McCosker (1957) 97 CLR 566 at 571–572; [1957] HCA 82 (McCosker), in which Dixon CJ and Williams J observed that:

“The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v. Perpetual Trustee Co. (Ltd.) [1938] NSWStRp 3; [1938] AC 463; (1938) 38 SR (NSW) 176 the word ‘proper’ in this collocation of words is of considerable importance. It means ‘proper’ in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent.”

83 Kitto J’s observations in the same case at 579 are also of note:

“The testator has shown by the terms of his will that he did not fail to consider what he ought to do for the several members of his family and that it was his deliberate judgment that some of them, including the respondent, had been adequately provided for by assistance he had given them. His opinion on the subject is, of course, by no means conclusive. But there is nothing to suggest that he was under any misapprehension, or that he was in any way prejudiced against the respondent; and the case seems to me to be one of those in which the testator is much more likely to have formed a correct conclusion on the subject of the moral obligations he owed to his family than a court can well hope to be.”

84 In Singer at 208–209, the majority held, in the context of broadly equivalent provisions under the predecessor Family Provision Act 1982 (NSW), that:

“It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the ‘jurisdictional question’. That description means no more than that the court's power to make an order in favour of an applicant under s.7 is conditioned upon the court being satisfied of the state of affairs predicated in s.9(2)(a).”

85 More recently, in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [122] (Vigolo), Callinan and Heydon JJ observed, in relation to the corresponding Western Australian legislation, that the questions which the Court has to answer in assessing such a claim do not “necessarily always divide neatly into two” and that:

“Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.”

86 Vigolo is also significant because three of the five justices (Gleeson CJ, Callinan and Heydon JJ) supported the continuing utility in this field of discourse of notions of moral obligation and duty. Thus, Gleeson CJ (at [25]) observed that:

“In explaining the purpose of testator's family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text.”

See also Callinan and Heydon JJ at [121], cf Gummow and Hayne JJ at [63]–[73].

87 It is also relevant to note that in Sgro at [83], White JA (with whom McColl and Payne JJA agreed) repeated what he had earlier said in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] as follows:

“In my view, respect should be given to a capable testator’s judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator’s death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant’s evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453–454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court’s determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased’s death or will.”

These observations bear a close affinity with those of Kitto J in McCosker, noted in [83] above. Sgro was a case where, as Payne JA explained at [3], one sister’s claim “was founded upon what all members of the family understood as her claim to the Greystanes property upon her parents’ death, Rosa [another sister] having earlier received the Merrylands property in a way all members of the family understood as comprising an early inheritance.” At [76]–[78], White JA relevantly held that:

“76 [T]he primary judge did err in principle in his assessment of the significance of Rosa’s having been given the Merrylands property in 1985 as her early inheritance. There is no doubt that the primary judge took that transaction into account as one of the material considerations. His Honour did so in considering the provision made for the applicant by the deceased during the deceased’s lifetime … and as evidence of the deceased’s testamentary intentions … In the section of his reasons headed ‘DETERMINATION’ the primary judge referred to the deceased’s having made generous provision for Rosa during her lifetime by, amongst other things, giving her an unencumbered house … His Honour then went on to say that the level of provision made during the lifetime of the deceased could not alone determine what was proper on the deceased’s death, albeit it was one of the matters to be taken into account in determining what is ‘proper’.

77 But in considering Carmela’s competing claim on the estate, the primary judge said (at [133]) that:

“Her competing claim is not founded upon any competing financial need, but on her contributions to the deceased, both financially and in other ways, during the deceased’s declining years.”

78 Carmela’s competing claim was not founded only on her contributions to the deceased during the deceased’s declining years. Fundamentally, it was founded upon what all members of the family recognised as her moral claim to the Greystanes property upon her parents’ death because her sister had received an early inheritance of the Merrylands property.”

88 In relation to the approach to be taken to a claim for provision by an adult child, reliance was placed by Merilyn and Bruce upon the following summary of principles by Hallen AsJ (as his Honour then was) in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111] as follows:

“(a)   The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

(b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.

(c)   Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia.

(d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

(e) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 149.

(f)   Although some may hold the view that equality between children does not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case.”

61. Recently, the New South Wales Court of Appeal in Angius v Angius [2025] NSWCA 113 (Mitchelmore JA; Bell CJ and Ball JA agreeing) said at [25]:

“The primary judge reproduced Henry J’s valuable summary of the relevant authorities in Lalic v Lalic [2022] NSWSC 31, part of which is particularly pertinent to the issues on ground 3 of the appeal:

“[51] A multifaceted evaluative approach that takes account of all the factual circumstances relevant to the application is required in order to determine whether adequate provision was made for the claimant’s proper maintenance, education or advancement in life: Sgro v Thompson [2017] NSWCA 326 (Sgro v Thompson) at [6] (Payne JA), [86] (White JA, McColl JA agreeing). The relevant circumstances will include a claimant’s needs, although there is a distinction between needs and adequate provision. Whether or not adequate provision has been made is not to be determined simply by a calculation of financial needs. Any assessment of a claimant’s needs also requires consideration of the size of the estate and others’ claims on it: Chan v Chan [2016] NSWCA 222 at [22].

[52] Thus, the concepts of adequate provision and the proper level of maintenance and advancement are to be assessed in the context of all of the circumstances of the case, including the claimant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the claimant and the deceased, and the relationship between the deceased and other persons who have legitimate claims on the deceased’s estate. Attention may also be given to how the claimant lived and might reasonably expected to have lived in the future: Blendell v Blendell [2020] NSWCA 154 at [7]–[8]; Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114].

[53] The determination of what is adequate provision for the proper maintenance, education and advancement in life of a claimant is to be guided by applying the Court’s assessment of what is considered to be right and proper according to contemporary accepted community standards or what is considered to be the moral duty of the deceased: Squire v Squire [2019] NSWCA 90 at [10]; Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 (Steinmetz v Shannon) at [44] (White JA), [109] (Brereton JA). …”

62. Ms Sewell relied on Tarbes v Taleb [2023] NSWSC 565 for the meaning of both “adequate” provision and “proper” maintenance. At [200]-[201], Meek J stated:

“The adjective “adequate” derives its meaning in context. The adjective generally conveys the meaning of something being equal to or fully sufficient to the particular requirement or occasion: Macquarie Dictionary, online ed. Within s 59(1)(c), the adjective “adequate” qualifies the noun “provision”.

The adjective “proper” derives its meaning in context. Generally, the word conveys the notion of something being fit or suitable or appropriate to the particular purpose or circumstances being addressed: Macquarie Dictionary, online ed. Within s 59(1)(c), the adjective “proper” qualifies the expression “maintenance, education or advancement in life”.”

63. The Court’s attention was also drawn to Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474, where Hallen J at [33] and [463] stated:

“In relation to statements made by the deceased, the Court should bear in mind, also, what was written by Gresson J, in the course of delivering judgment for the Court of Appeal of New Zealand in In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 at 141; [1950] NZGazLawRp 121 (which passage was approved by the majority of the High Court in Hughes v National Trustees Executors and Agency Company of Australasia Ltd at 152):

“If reasons are given by the testator reflecting on the character or conduct of that child, the court must, in considering the sufficiency or otherwise of the reasons, endeavour to decide upon the truth or otherwise of the allegations. But the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting a claim. In our opinion, the reasons given by a testator for excluding a child (or a widow) go no further than to concentrate attention on the question whether there is or has been character or conduct operating to negative the moral obligation that would otherwise have lain upon the testator.”

…

the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards…”.”

64. While the term ‘estrangement’ is rarely useful (see Rada v Smith [2024] NSWSC 273 at [26]-[28]; Leverton v Prendy [2024] NSWSC 1638 at [139], [142]-[143]), this discretionary factor was outlined by Ward JA (Meagher and Emmett JJA agreeing) in Burke v Burke [2015] NSWCA 195 at [88]-[93]:

“88 His Honour did not err in rejecting the submission that it would only be the most egregious conduct of a child of the deceased that would deprive even an adult child of a right to have his or her needs taken into account by the Court and to have an appropriate decision made in his or her favour where it is established that he or she is impecunious or of very limited financial means. True it is that in Hughes v National Trustees, Executors and Agency Co Australasia Ltd [1979] HCA 2; (1978-1979) 143 CLR 134 it was said that the stronger the applicant’s case for relief the more reprehensible must have been his conduct in order to disentitle him to the benefit of any provision. However, the authorities do not, in my opinion, stand for the proposition that in all cases where estrangement is not the product of callousness or hostility there is a prima facie entitlement to provision.

89 In Palmer v Dolman (at [110]), Tobias JA was of the opinion that “the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the [now superseded Family Provision] Act. Nevertheless, it does not follow from that that there is a prima facie entitlement to provision in circumstances where there is financial need on the part of an estranged adult child.

90 In Ford v Simes, Bergin CJ in Eq said (at [71]-[72]):

It is one thing to make provision for a child, even an adult, where the Court is able to better balance the obligations of the testator with the adequacy of the provision made by the testator. However in my view it is very important for the maintenance of the integrity of the process in these types of applications that this Court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children: The Pontifical Society for the Propagation of the Faith and Saint Charles Seminary, Perth v Scales (1961) 107 CLR 9. This is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility. (my emphasis)

It is obvious that if the estrangement from the testator is explicable, as was the case in the authorities referred to above, a claimant may still achieve an order for provision under the Act. However there will be cases in which the estrangement is such that a testator is entitled to make no provision for an estranged child. This is one of them. The deceased spent the last 14 years of his life without any assistance from the appellant; without any communication (except the abusive encounter) from the appellant; and without the benefit of the love from a child whom he had nurtured and financially assisted during his formative years.

91 The words italicised above do not support Terry’s contention that, almost as of right, provision should be made in the absence of hostility or callousness. Her Honour was there contemplating that estrangement was a factor that would appropriately be taken into account; that it would not necessarily preclude the establishment of a claim for provision; and that circumstances of hostility or callousness were ones in which it might be particularly appropriate for a testator to choose not to make provision for an estranged adult child. But her Honour did not suggest that callousness and hostility are the only circumstances in which the community might reasonably consider it not inappropriate for there to be no provision made for an estranged adult child even though that child was in straitened financial circumstances.

92 In Keep v Bourke, Barrett JA (at [37]) made clear that estrangement did not enjoy the status of a determinative consideration. There, the testator was the instigator of the separation. The fact that the daughter (who had married against her parents’ wishes) did not attempt reconciliation was treated by the primary judge as not barring a claim for provision though it reduced her claim on the testator’s bounty. Barrett JA considered that his Honour’s decision should be upheld, on the basis that his Honour had addressed all relevant matters going to jurisdiction and an assessment was made by way of appropriate “multi-faceted evaluative judgment” taking those matters into account.

93 What these observations demonstrate is that it is for the primary judge to evaluate all the relevant circumstances, including, where there has been a period of estrangement, the circumstances of that estrangement and whether there has been any attempt at reconciliation; and that there may be no one right answer: reasonable minds may differ.”

65. On this point, Ms Sewell also drew the Court’s attention to the decision of Slattery J in Kouroutis v Kouroutis [2023] NSWSC 608 in which his Honour said:

“79   The first consideration is that the 2019 will shows internal evidence that at the time it was made the deceased misapprehended the longer term aspects of his relationship with Asmina. His incorrect statement in the 2019 will that Asmina “did not attend the funeral of her mother”, shows that the deceased’s appreciation of these longer term features of his relationship with Asmina had become clouded. How broad the deceased’s misapprehension was is difficult to say. But making a mistake as fundamental as accusing one’s own child of not attending her mother’s funeral is a significant error. And he was prepared to act on that error rather than be cautious about what he could remember. This causes the Court disquiet about the deceased’s broad appreciation of his relationship with Asmina and and (sic) up to about the time of Anna’s funeral.

80   A second consideration arises when the error concerning Asmina’s attendance at her mother’s funeral is corrected. Leaving aside for a moment Asmina’s non-attendance at Kathy’s funeral, the deceased’s other reason for providing a limited legacy to Asmina principally relates to Asmina not visiting him in the nursing home for 12 months. As the findings above show, the Court only accepts Asmina’s evidence about visiting the deceased in the nursing home to a limited extent. She says that she did a number of times. The Court finds that she probably visited a few times. But that means that even this part of the deceased’s reasons for downgrading benefits to Asmina is wrong as well.

81   But even if this statement were true, it relates to very recent events and does not involve positive misconduct towards the deceased on Asmina’s part. The deceased did not say in the will that he was estranged from Asmina, that Asmina had been violent towards him or rejected him, indeed he does not say anything about the wider long-term relationship between father and daughter. It is understandable that her lack of visitation to the nursing home would have aggravated the deceased because the dislocation he had suffered from moving out of the Parramatta property and the few visits that he had. But it is to be remembered by that stage Asmina was in her mid 50s and the deceased’s relationship with her had existed for over half a century before this. And although Amina was a constant worry to her parents throughout their mutual lives, some connection between them was always maintained, though it varied in quality over time. And there was in fact no formal rupture in their relationship as the Court sometimes sees in estrangement cases.

82   These two matters lead to a third consideration: there is a degree of disproportion in the 2019 will, which also founds an inference that the deceased did not soundly evaluate Asmina’s claims upon his testamentary bounty…” (Emphasis added.)

Maurisio’s submissions

66. The ultimate submission made on behalf of Maurisio was that the legacy of $300,000 was not adequate and proper provision for him, and that he should receive an amount that was equivalent to the gross value of the vacant lot, being approximately $1,000,000.

67. To support this submission, four points were made: Maurisio’s financial need, Bertilla’s moral obligation, Bertilla’s insufficient knowledge about Maurisio’s circumstances and her false beliefs.

Financial need

68. Ms Sewell submitted that it was not necessary for Maurisio to show financial need, but instead the Court should consider his financial need against the provision left to him. Adequate provision for Maurisio would be an amount that is sufficient for him to pay off his debts and have a buffer against contingencies to supplement his superannuation and provide for his increasing health needs over time. Maurisio has financial needs, and his debts alone are greater than the legacy. While Ms Sewell accepted this is not a case where Maurisio is unable to meet his expenses from his current income, it was submitted that Maurisio is not in a position to pay off his various debts at the rate at which someone of 63 years of age would like. The amount of provision sought was submitted to be intended to cover the discharge of Maurisio’s current mortgage of $151,282, top-up his superannuation or be a buffer for contingencies in the amount of $300,000 and potentially pay out the overdraft of $129,709. No evidence as to the amount of superannuation required was provided.

69. It was submitted that the estate is of sufficient size provide adequately and properly for Maurisio’s maintenance and advancement in life, while still providing Dante with a more than generous provision, as intended by Bertilla.

Moral obligation

70. It was argued that Maurisio did nothing to diminish the moral obligation Bertilla had in relation to him. While Ms Sewell conceded that, as an adult child, Maurisio did not deserve any particularly special treatment, it was submitted that the moral obligation to provide for him remained. The deterioration of the relationship between Bertilla and Maurisio only occurred due to the deterioration of the relationship between Dante and Maurisio, which was submitted to be irrelevant.

71. Both Bertilla and Maurisio contributed to the initial period where there was no contact, not just Maurisio. Ms Sewell submitted that Bertilla also did not attempt to contact Maurisio, and that the Court should conclude that Dante had effective control over Bertilla, which would have made it difficult for Maurisio to contact her.

Insufficient knowledge

72. It was contended that Bertilla had no contact with Maurisio for years prior to her death, she therefore had no information on which to assess whether the legacy was adequate or proper provision for his maintenance and advancement in life. Bertilla was simply focused on providing an amount of provision in the erroneous belief some provision would prevent a claim being made, rather than whether proper provision was being made.

Inconsistencies

73. It was submitted that the handwritten notes contained false statements which indicate that Bertilla believe untrue things about both Maurisio and Dante.

74. The Court’s attention was drawn to what were said to be inconsistencies and inaccuracies in Bertilla’s notes:

1. She had written that “as a result (being following her refusal to sign the guarantee), we have fallen into their contempt and hatred” (see [53] above). Ms Sewell submitted that there is no evidence of any ill feeling between Maurisio and Bertilla, other than the occasion where Bertilla called him to follow up the loan on behalf of Dante;

2. Bertilla wrote Dante “has always paid from his own pockets the council rates and other bills”, “Dante pays all expenses, taxes, rates, electricity, food out of his own money for me” and Dante “also pays all the bills” (see [53] and [56] above) It was submitted that the evidence indicated that both Dante and Bertilla paid the bills, not just Dante. Dante accepted that was the case;

3. Bertilla wrote Dante pays “all the bills as I am unable to get the pension due to the property held in my name” (see [57] above). The evidence clearly showed that Bertilla did in fact receive the pension (both Australian and a small Italian pension as Luigi’s widow); and

4. Bertilla’s timeline of events leading up to Dante’s aneurysm in September 2012 was submitted to be inconsistent. At one point in her notes, Bertilla wrote that it was caused by a “quarrel suffered by his brother, Maurisio, about 6 months earlier” (see [53] above). This would have placed the incident between Maurisio and Dante in March 2012. Later, Bertilla wrote “there’s been friction between my sons going back to 2012 when they were in business together… he had ongoing headaches and a year later had a stroke” (see [57] above). This would place the stroke in 2013. Bertilla also wrote “ten years and a couple of months ago, precisely on 24 September 2012, for a trivial discussion regarding the job he attacked his brother, punching him on the head” (see [56] above). However, this date is the date of Dante’s actual aneurysm, not the date of the altercation. On Maurisio’s case, the only physical altercation between the brothers occurred in 2004.

75. It was submitted by Ms Sewell that it would be unbelievable for both Bertilla and Dante to attribute the aneurysm to Maurisio at the time, particularly when Dante allowed Maurisio to take him to various hospital and doctor’s appointments. The fact that Bertilla appeared to believe this was relied upon as being important. This belief was submitted to be one which became a fixed and firm one in the mind of Bertilla, and existed as a result of a repeated narrative told by Dante who wished to poison Bertilla against Maurisio.

76. Ms Sewell invited the Court to infer that Dante had deliberately sought to turn Bertilla’s attention from Maurisio to himself. This inference was submitted to be available from:

1. The various notes repeating the same things, which demonstrated a fixation on the part of Bertilla;

2. Bertilla being isolated from other people, Maurisio and Maurisio’s family, with only Dante to assist her; and

3. Bertilla’s call to Maurisio occurring due to Dante beginning to agitate the return of his funds again, considering on the evidence this was the first and only time Bertilla involved herself in the brothers’ business and appeared to be the cause of contact ceasing with Maurisio.

Dante’s submissions

77. Mr Ellison SC submitted that the provision made for Maurisio was adequate considering that:

1. Bertilla was clearly coherent and capable;

2. Bertilla gave detailed consideration to the provision she would make for Maurisio;

3. There is an absence of significant need, particularly with the debts to Mr Hutchin and Mr Stewart not in any imminent risk of being recalled, and Maurisio being in a very comfortable position in the event he sells his property;

4. Maurisio did not contribute to the welfare of Bertilla, particularly in the final years of her life and did not try to contact her or be involved in her life; and

5. Bertilla had appropriately discharged the moral obligation she owed to an adult son in a situation where the relationship between Bertilla and Maurisio was strained, and Bertilla’s observations were that Maurisio’s relationship with Dante was also strained as a result of Maurisio’s conduct. Mr Ellison SC submitted that the behaviour of Maurisio towards both Dante and herself had obviously upset Bertilla.

78. Mr Ellison SC overarching submission was that this was not a case of competing financial claims, but competing moral claims, with Bertilla giving detailed consideration of how those claims should be settled in her will.

Consideration

79. The first question for determination is whether the legacy is proper and adequate provision for Maurisio in all the circumstances. While it is accepted that whether proper provision has not been made is not simply a financial calculation, it is instructive to start by considering the amounts which Maurisio submitted would have been proper provision in his “wish list” (see [12] above).

80. $300,000 was claimed for additional superannuation and contingencies. No evidence was led as to how much Maurisio requires in superannuation. Contingencies are a highly subjective assessment which require instinctive synthesis rather than scientific calculation. However, what is significant is that this part of Maurisio’s claim is in fact what he receives from the estate.

81. $100,000 was claimed for health and medical expenses. Beyond an unsupported assertion by Maurisio, there is no evidence of his likely medical expenses, and how much of those expenses would not be covered by Medicare. There is no basis in the evidence to conclude that any amount would be required for these matters.

82. The balance of the claim consists of items that were incurred in the ordinary course of Maurisio’s life as an independent adult and that he is currently servicing. There was no suggestion that he will not in the future be able to satisfy these items from the sale of his property, either as part of downsizing with age or out of his estate:

1. $33,009 for a burial plot – this is being paid for in monthly instalments as part of Maurisio’s ordinary monthly expenses;

2. $60,000 for repayment of the loan to Lloyd Hutchen – this was a longstanding loan. Maurisio gave evidence that the loan went back a number of years (but less than six years), and that no paperwork existed regarding the loan (Tcpt, 19 May 2025, p 59(13) – (29)). There is no suggestion or evidence that this loan will be recalled anytime soon or at all;

3. $129,709 for repayment of overdraft – this overdraft was originally a business overdraft that Maurisio shared with a business partner. However, that business is no longer running and his share of the debt is now Maurisio’s personal obligation. The debt is secured by a caveat over his property; and

4. $151,282 for repayment of his mortgage – the mortgage repayments are being met and any remaining balance would be met upon any sale of Maurisio’s property.

83. The sole item which Maurisio does not have any prospects of earning or otherwise obtaining was a top up to his superannuation and a buffer for contingencies. The legacy left by Bertilla met those needs. However, because all of the circumstances of the case must be taken into account, this conclusion can only be a starting point, albeit an essential one. Considering Maurisio’s financial position more generally, assuming the application of his legacy to superannuation and a contingency, Maurisio’s assets considerably exceed his liabilities. He is able to meet his current expenses including servicing those liabilities, which will otherwise be met upon sale of his property whether in his lifetime or from his estate. As I will develop further below, the Court also accepts the factual basis for Bertilla’s view that Maurisio had treated Dante very badly and he had also affronted her directly with his behaviour. These matters, together with the strength of Dante’s claim in its own right and when compared to Maurisio’s, all confirm the Court in its assessment that the legacy was adequate provision for Maurisio.

83. The fact that Bertilla could have done more for Maurisio given the size of the estate does not necessarily mean that the legacy was not adequate and proper provision for Maurisio. I have taken the size of the estate into account in reaching the conclusion that Maurisio has failed to demonstrate that, in all the circumstances of this case, the legacy was not adequate provision for Maurisio’s proper maintenance, education or advancement in life.

84. I should record for completeness that Mr Ellison SC argued there was another way of approaching the question. He submitted that in any given case there will be a range of what might be adequate and proper provision. The question in this case is whether $300,000 was so obviously outside the range in all of the circumstances as to warrant intervention by the Court. He submitted the answer was “no”.

85. While I accept this approach has an attractive simplicity, I do not agree that it reflects the statutory task and consider that it risks distracting from that task. The idea of a “range” is certainly reflective of the Court’s discretionary decision in making a family provision order. As appellate authorities have recognised, a proper exercise of the discretion can yield results within a range. However, in my respectful opinion, in determining whether the jurisdictional prerequisite in s 59(1)(c) is met, the Court’s satisfaction (see the chapeau to s 59) involves a binary conclusion: the provision in the will (or outcome on intestacy) for the claimant is either adequate or not. To import the notion of a range is not authorised by the language of the Act.

86. However, if I am wrong in the conclusion set out in [83] such that the Court’s discretion to make a family provision order is engaged, I would decline to do so in the exercise of that discretion. That outcome is based upon all of the reasons set out in [79] to [83] above and the fact of the legacy itself. Furthermore, it is based upon my firm view that this is a case of a competent testator who the evidence clearly demonstrates had given very careful consideration to the moral claims of her children and, as such, whose wishes should be given great (and, in this case, dispositive) weight (see s 60(2)(j) of the Act). As I shall next develop, I do not accept Maurisio’s submission that her careful consideration is vitiated by material error on her part.

87. I have considered Maurisio’s submissions regarding what were said to be errors and inconsistencies in Bertilla’s notes. It may be accepted that relevant errors or inconsistencies could either favour someone for whom provision is made (e.g. wrongly attributing to that person benefits provided to the deceased) or disfavour someone for whom no or inadequate provision has been made (e.g. wrongly attributing to that person unsatisfactory conduct towards the deceased).

88. However, applying the approach of Slattery J in Kouroutis (see [65] above), I am not satisfied that Bertilla’s “broad appreciation of the relationship” (being either the relationship between the brothers, or her relationship with Maurisio or Dante) was demonstrably materially incorrect such that the Court should infer that Bertilla “did not soundly evaluate” Maurisio’s (or, for that matter, Dante’s) claims upon her testamentary bounty. Given the independent and objective evidence, and the Court’s view of the respective credibility of each brother, the Court is well satisfied that Bertilla was correct in her assessment that as between her two sons Dante was the one far more sinned against than sinning and that she could rationally give that dispositive weight in how she should divide her estate between them. The same applies to her assessment of Maurisio’s conduct towards her.

89. I will deal in turn with the matters set out in [74] above identified by Ms Sewell:

1. The matters in [34], [35], [37] and [44] above all demonstrate a basis for Bertilla to conclude that Maurisio was not well disposed either to her or to Dante (her awareness of the latter being very relevant to the approach she took). Notwithstanding this, she noted (see [58] above) that she continued to have affection for Maurisio as her son.

2. I accept the evidence (including from Dante) that Bertilla paid bills herself from her own money. However, I interpret her statements to be saying (as Dante did himself) that when Dante paid household bills he did so from his own money. I also accept Dante’s evidence that he operated Bertilla’s account to pay bills at her direction.

3. I accept the evidence that, contrary to the statement in her notes, Bertilla did receive an Australian and Italian pension, and that Dante did not pay “all” the bills. In its context, I consider her statement is the product of emotional hyperbole rather than a necessarily factual conclusion. However, even if it is straightforward error, I do not regard it as so substantial in the context of everything else she said and wrote at the time so as to cast doubt on her capacity or her overall evaluation of Maurisio’s claim on her bounty, not least because the statement is not one that is a false accusation against Maurisio.

4. The criticisms of her timeline are unpersuasive. The variations are all explicable as being the product of recollecting events some years after they occurred. They do not bespeak any confusion on Bertilla’s part that would be material to an assessment of the soundness of her overall reasoning as to her testamentary bounty.

91. The Court does not accept the submission that Dante poisoned Bertilla’s mind against Maurisio. The Court accepts Dante’s evidence and that of both Messrs Galuzzo and Cavallero, supported by her notes themselves, that Bertilla was an independent and capable person who could make up her own mind. If an explanation for the change between her penultimate and final wills is required, that is provided by the events surrounding the ADVO (see [44] to [47] above). Bertilla attended court on 4 May 2022 to give evidence against Maurisio, and Maurisio wrote in his diary that his mother had ‘shown her true colours’. Bertilla then attended the offices of Mr Galluzzo to change her will on 30 May 2022. Notably, while it is a smaller amount than in her 2018 will (see [43] above), Bertilla still left Maurisio something.

92. Finally, I record that in reaching the conclusion set out in [87] above, I have not overlooked that:

1. Maurisio and his wife had done things to assist Bertilla prior to the cessation of communication, and that Maurisio visited Dante in hospital after the latter’s aneurysm and drove him to some medical appointments; and

2. There is sufficient in the estate to permit greater provision for Maurisio while still leaving Dante with secure accommodation and adequate funds for his needs.

Conclusion

93. Maurisio’s amended summons will be dismissed. The Court will hear the parties as to costs if they are not able to be agreed.

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Decision last updated: 16 June 2025