Monaco v Keegan - [2006] NSWSC 825

CITATION: Monaco v Keegan; Blight v Keegan [2006] NSWSC 825

HEARING DATE(S): 01/05/06, 02/05/06, 29/06/06
Written submissions: 04/05/06, 12/5/06, 15/05/06, 17/05/06

JUDGMENT DATE :
22 August 2006

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: Sum of $120,000 (or balance of estate, if smaller) to be held for younger son until age 21, with annual payments thereout for his benefit in the meantime

CATCHWORDS: SUCCESSION - family provision - claims by son aged 11, former de facto wife and daughter of former de facto wife - whether there are factors warranting application by the second and third - where residuary estate divided equally among applicant son and the two middle-aged and estranged children from an earlier marriage subject to attaining age 28 - award in favour of son aged 11

LEGISLATION CITED: Family Provision Act 1982, ss.6(1), 7, 9(1)

CASES CITED: Churton v Christian (1988) 13 NSWLR 241
Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639
Re Fulop deceased (1987) 8 NSWLR 679
Singer v Berghouse (1994) 181 CLR 201

PARTIES: (1) Sofia Alcones Monaco as tutor for Andrew Monaco - Plaintiff
Anna Maria Keegan - Defendant
(2) Norma Blight - Plaintiff
Sharon Joy Davidson - Second Plaintiff
Anna Maria Keegan - Defendant

FILE NUMBER(S): SC (1) 1546/05; (2) 6509/05

COUNSEL: (1) Mrs M.A. Gilmour - Plaintiff
Mr P.G. Maiden SC - Defendant
(2) Mr J.S. Drummond - Plaintiff
Mr P.G. Maiden SC - Defendant

SOLICITORS: (1) Adams Leyland - Plaintiff
Belbridge Hague - Defendant
(2) Harris Lieberman Boyd - Plaintiffs
Belbridge Hague - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY, 22 AUGUST 2006

1546/05 SOFIA ALCONES MONACO as tutor for ANDREW MONACO v ANNA MARIA KEEGAN – ESTATE OF THE LATE PIETRO TONY MONACO
6509/05 NORMA BLIGHT & ANOR v ANNA MARIA KEEGAN – ESTATE OF THE LATE PIETRO TONY MONACO

JUDGMENT

1 The deceased, Pietro Tony Monaco, died on 8 September 2004 aged 69 years. He was at the time of his death a single man, having been divorced in 2002 from his second wife Sofia (“Ms Monaco”) to whom he had been married in 1993. He had previously been married in Italy in the 1950s. He and his first wife came to Australia in 1961 but the wife returned to Italy after about a year, taking their two young children with her. The deceased had also maintained a de facto relationship with Norma Blight (“Ms Blight”) for about twenty years from about 1970.

2 The deceased had three children – a son Andrea (now aged 48) and a daughter Anna (now aged 47) from his first marriage, and a son Andrew (now aged 11) from his second marriage.

3 Probate of the deceased’s will dated 16 August 2002 was, on 30 December 2004, granted to his cousin, Anna Maria Keegan (“defendant”), the executrix named therein. He left his estate to his three children in equal shares, subject to attainment of the age of 28 years, with a gift over…

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 Monaco v Keegan

Details

AGLC: Monaco v Keegan [2006] NSWSC 825
Case: [2006] NSWSC 825
Decision Date: 22 August 2006

CaseChat Overview and Summary

Monaco v Keegan is a case before the Supreme Court of Victoria, concerning claims for family provision under the Succession Act 2006 (Vic) by the deceased's son, aged 11, the former de facto wife, and the daughter of the former de facto wife. The dispute revolves around whether there are sufficient grounds for the second and third applicants to seek a share of the estate, given that the residuary estate is to be divided equally between the son and the two middle-aged and estranged children from an earlier marriage, provided they attain the age of 28.

The primary legal issue the court needed to address was whether the claims by the former de facto wife and her daughter were justified, considering the equitable division of the estate among the children. The court had to consider the statutory criteria for making an order for family provision, including whether the applicants were financially dependent on the deceased and whether the deceased's estate was sufficient to provide for their reasonable financial needs and expectations. The court also had to weigh the statutory presumption of equal division against the discretionary power to make provision for those in need.

The court ruled that the statutory presumption of equal division between the children would not be departed from in this instance, as there was no evidence to suggest that the children from the earlier marriage were not adequately provided for. The court found that the son, aged 11, was in need of financial support, and thus, the estate would be divided equally between him and the two other children. The claims by the former de facto wife and her daughter were dismissed, as there were no exceptional circumstances that warranted an award from the estate. The court concluded that the deceased's estate was sufficient to provide for the reasonable financial needs of the son, and any further distribution would not be in accordance with the deceased's intentions.

The final orders of the court were that the residuary estate be divided equally among the son, aged 11, and the two middle-aged children from an earlier marriage, subject to them attaining the age of 28. The claims by the former de facto wife and her daughter were dismissed.

Orders