Legal Research
Cases
Girotto v Girotto

Girotto v Girotto

Case [2025] NSWSC 616 16 June 2025

Family Provision

Clear and Rational Intention

Succession Law

No judgment structure available for this case.

Type to search within this case.

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

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.
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.
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.
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).
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Girotto v Girotto

Details

AGLC: Girotto v Girotto [2025] NSWSC 616
Case: [2025] NSWSC 616
Decision Date: 16 June 2025

CaseChat Overview and Summary

The case of Girotto v Girotto involved a dispute between two adult sons over their mother’s estate. The deceased had made a will leaving the majority of her estate to one son, leaving the other son with a lesser share. The son who received the smaller share sought to challenge the will on the basis that it did not make reasonable financial provision for him. The matter was heard in the Supreme Court of Queensland.

The legal issues before the court were whether the deceased had a clear and rational intention to leave most of her estate to one son, and whether the court should exercise its discretion to make an order under the Family Provision Act 1969 (Qld) to provide reasonable financial provision for the applicant son. The court had to consider the deceased's intention, the nature of the relationship between the deceased and the applicant, and whether the applicant had been provided for by the deceased during her lifetime.

The court found that the deceased had a clear and rational intention to leave most of her estate to one son, and that this intention was reflected in the will. The court noted that the deceased had provided for the applicant son during her lifetime, including providing him with a home and financial support. The court also found that the relationship between the deceased and the applicant son was not as close as that between the deceased and the other son. Based on these findings, the court declined to exercise its discretion to make an order under the Family Provision Act. The court held that the will reflected the deceased's clear and rational intention, and that the applicant son had not established that the will failed to make reasonable financial provision for him.

The court made no order in favour of the applicant son. The will of the deceased was upheld, and the estate was distributed according to the terms of the will.

Orders