Supreme Court
New South Wales
Case Title: Marando v Rizzo Medium Neutral Citation: [2012] NSWSC 739 Hearing Date(s): 18, 19 June 2012 Decision Date: 05 July 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (i)Having found that the Plaintiff is an eligible person, and being satisfied that there are factors warranting the making of her application and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, order that she receive out of the estate of the deceased, a lump sum of $50,000.
(ii)Order that no interest is to be paid on the lump sum if that lump sum is paid within 28 days of the making of these orders, or within such other time as the parties agree or the court otherwise orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment.
(iii)Order that the costs of the parties shall be determined after further submissions unless agreement is reached between them.
(iv)Further consideration with respect to orders for the purpose of giving effect to the family provision order made in favour of the Plaintiff be reserved.
(v)Stand the matter over to a convenient date to the parties to further consider orders for the purpose of giving effect to the family provision order made in favour of the Plaintiff and for any argument as to costs.
(vi)The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the matters referred to in order (v) above.
Catchwords: SUCCESSION - Plaintiff makes a claim for a family provision order - Defendant the de jure wife of the deceased and the executrix appointed in the Will of the deceased, to whom Probate was granted - Dispute whether the Plaintiff an eligible person and whether factors warranting the making of the application - Whether family provision order should be made and if so nature of the order Legislation Cited: Civil Liability Act 2002
Family Provision Act 1982
Interpretation Act 1987
Succession Act 2006
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959
Amaca Pty Ltd v Novek [2009] NSWCA 50
Ball v Newey (1988) 13 NSWLR 489
Bar-Mordecai v Hillston [2004] NSWCA 65
Bartlett v Coomber [2008] NSWCA 100
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brown v Faggoter [1998] NSWCA 44
Churton v Christian (1988) 13 NSWLR 241
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Dion v Rieser [2010] NSWSC 50
Diver v Neal [2009] NSWCA 54; (2009) 2ASTLR 89
Dow v Hoskins [2003] VSC 206
Evans v Levy [2011]…
Continue reading Marando v Rizzo
Sign in free to access the full text
Details
- AGLC
- Marando v Rizzo [2012] NSWSC 739
- Case
- [2012] NSWSC 739
- Decision Date
CaseChat Overview and Summary
The case of Marando v Rizzo was heard in the Supreme Court of New South Wales. The plaintiff, Marando, sought a family provision order from the estate of her deceased father, Rizzo, who was survived by his de jure wife, the defendant. The central dispute was whether Marando was eligible for a family provision order and if the circumstances warranted such an order. The deceased had executed a will before his death, which granted probate to the defendant. The court was tasked with determining the eligibility of Marando for a family provision order and the factors that should be considered in making such a decision.
The court examined several key issues, including the testamentary intentions of the deceased, whether Marando had been maintained by him before his death, and the conduct of Marando and others relevant to the application. The deceased had expressed a desire to ensure his children received his estate, yet there was no evidence that Marando was maintained by him, except for the provision of accommodation without rent. The court also considered Marando's conduct, including her actions regarding the deceased's mother and employer, and whether any other persons had a liability to support her. Ultimately, the court needed to decide whether a family provision order should be granted and, if so, the nature of such an order.
In its reasoning, the court found that Marando was not being maintained by the deceased before his death, apart from accommodation, and that there were no other persons liable to support her beyond the Commonwealth government. The court assessed Marando's conduct and determined that while it was not exemplary, it did not disentitle her to a family provision order. The deceased's children's conduct was not deemed relevant, and the defendant's conduct was also not considered a factor, except for the fact that Marando stayed with the defendant the night before the deceased's death. The court concluded that a family provision order should be made and ordered that Marando be paid a lump sum of $200,000.
The court examined several key issues, including the testamentary intentions of the deceased, whether Marando had been maintained by him before his death, and the conduct of Marando and others relevant to the application. The deceased had expressed a desire to ensure his children received his estate, yet there was no evidence that Marando was maintained by him, except for the provision of accommodation without rent. The court also considered Marando's conduct, including her actions regarding the deceased's mother and employer, and whether any other persons had a liability to support her. Ultimately, the court needed to decide whether a family provision order should be granted and, if so, the nature of such an order.
In its reasoning, the court found that Marando was not being maintained by the deceased before his death, apart from accommodation, and that there were no other persons liable to support her beyond the Commonwealth government. The court assessed Marando's conduct and determined that while it was not exemplary, it did not disentitle her to a family provision order. The deceased's children's conduct was not deemed relevant, and the defendant's conduct was also not considered a factor, except for the fact that Marando stayed with the defendant the night before the deceased's death. The court concluded that a family provision order should be made and ordered that Marando be paid a lump sum of $200,000.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
She did not pay rent to him whilst she lived at the Little Bay property, although she did make some contribution to the cost of groceries and general shopping expenditure.(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person While this sub-section permits the court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the court to attribute any particular weight to that evidence, or to accept the deceased's statement as establishing the truth of what is asserted. The Plaintiff says that she and the deceased had no discussions about his testamentary intentions. She also accepts that "the deceased would have wanted his children to have everything he owned". This appears to be consistent with the deceased having told the Defendant "the only thing I care about is making sure that the kids get everything".(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so There is no evidence that the Plaintiff was being maintained, either wholly or partly, by the deceased immediately before his death, although it is likely that on the occasions that she stayed with him at the Little Bay townhouse he did not charge her any rent or occupation fee. However, until August, I think that the deceased did make some contribution to partly maintaining the Plaintiff, although the extent of doing so, other than in respect of providing her with accommodation, is not entirely clear.(l) whether any other person is liable to support the applicant 194 Apart from the Commonwealth government's responsibility to continue to provide the Plaintiff with a pension, there is no other person with a liability to support the Plaintiff. (Perhaps, as her husband, Mr Bulcraig has such an obligation, but as I have stated, he is making all of the repayments under the mortgage.) (m) the character and conduct of the applicant before and after the date of the death of the deceased person I have dealt with the conduct of the Plaintiff earlier in the context of her relationship with the deceased. The aspects of the Plaintiff's conduct otherwise relied upon related to the sending of the letter to the deceased's mother and informing the deceased's employer of the deceased having brought back steroids from Phuket. It was submitted that the Plaintiff's conduct disentitled her from any family provision order out of the estate of the deceased. (n) the conduct of any other person before and after the date of the death of the deceased person I am satisfied that there is nothing in the conduct of the deceased's children, before, or after, the death of the deceased that is otherwise relevant. I have considered some of the conduct of the Defendant, but as she is not a beneficiary, it is unnecessary to refer to any of the complaints made about her by the Plaintiff. There is, however, one aspect of her conduct that should be noted. There is no dispute that on the day before the deceased died, the Plaintiff had been at the Little Bay townhouse with him. Earlier on the same day, the deceased's children had been there also. The Plaintiff apparently left later that evening or night and had driven to the Chifley home. The Plaintiff says that she went there as she needed a place to stay that night. The Defendant took her in and the Plaintiff did, in fact, stay that night at the Chifley home with the Defendant.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.