Milillo v Konnecke

The appeal concerned a family provision claim brought by Rosa Milillo against the estate of her deceased husband, Luigi Borazio. The dispute centred on whether the testator had made sufficient provision for Rosa in his will, given her circumstances and the terms of their pre-nuptial agreement. The case was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the trial judge had erred in the exercise of their discretion in determining the adequacy of provision for Rosa, and whether the weight given to certain factors constituted an error. Specifically, the court considered whether a "portable life estate" was an appropriate form of provision in a small estate and whether a widow's claim for provision automatically held primacy over other beneficiaries. The court also had to determine the appropriate orders for costs, particularly concerning the separate representation of the executors and another beneficiary, Gina.

The Court of Appeal dismissed the appeal, upholding the trial judge's decision. The court reasoned that the testator's agreement with his former wife, Marlene, and his subsequent agreement with Rosa to keep their assets separate, were significant factors. These agreements had conferred substantial benefits on Rosa and her children, enabling her to make significant gifts. The court found that the testator had made provision for Rosa in his will by granting her a life estate in the matrimonial home, and that this provision, in light of the circumstances and agreements, was not demonstrably insufficient. The court applied the principles governing family provision claims, emphasising that the court's discretion must be exercised having regard to all relevant factors, and that an error of law or fact must be demonstrated to overturn the trial judge's exercise of discretion.

The court ordered that Rosa pay the executors' costs of the appeal. The executors were entitled to be reimbursed from the testator's estate on an indemnity basis for the balance of their costs not paid by Rosa. No order was made as to Gina's costs, meaning she was to bear her own costs of the appeal.