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Perez v Ciabattoni

Perez v Ciabattoni

Case [2024] NSWSC 138 23 February 2024

Family Provision

Succession Act 2006 (NSW)

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Perez v Ciabattoni [2024] NSWSC 138
Hearing dates: 12, 13, 14 February 2024
Date of orders: 23 February 2024
Decision date: 23 February 2024
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
(1) Dismiss the summons.
(2) Dismiss the cross-claim.
(3) Direct the parties to file and serve short submissions on costs on or before 4:00pm on 8 March 2024.

Catchwords:
SUCCESSION – family provision – claim by adult daughter for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – where the deceased’s will bequeathed the rest and residue of her estate to her daughter and son as tenants in common in equal shares – whether factors warranting order for provision in favour of the adult daughter of the deceased

Legislation Cited:
NSW Trustee and Guardian Act 2009 (NSW), s 65
Succession Act 2006 (NSW), ss 57, 59, 60

Cases Cited:
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bezjak v Wyatt [2018] NSWSC 199
Blore v Lang (1960) 104 CLR 124; [1960] HCA 73
Chapman v Ingold; Estate of the Late Eleanor Merle Ingold [2015] NSWSC 1604
Grey v Harrison [1997] 2 VR 359
Haertsch v Whiteway (No 2) [2020] NSWCA 287
Sgro v Thompson [2017] NSWCA 326
Starr v Miller; Starr v Miller [2021] NSWSC 426
Tarbes v Taleb [2023] NSWSC 565
Taylor v Farrugia [2009] NSWSC 801

Category: Principal judgment
Parties: Maria Teresa Alessandra Perez (Plaintiff/Cross-Defendant)
Piero Dino Ciabattoni (Defendant/Cross-Claimant)
Representation:
Counsel:
K Morrissey (Plaintiff/Cross-Defendant)
S Bell (Defendant/Cross-Claimant)
Solicitors:
Turner Freeman (Plaintiff/Cross-Defendant)
Lloyd Truman Sadiq Solicitors (Defendant/Cross-Claimant)

File Number(s): 2022/00366283
Publication restriction: Nil

JUDGMENT

These proceedings were commenced by way of summons filed on 5 December 2022. Ms Maria Teresa Alessandra Perez (the plaintiff) seeks an order pursuant to s 59 of the Succession Act 2006 (NSW) that further provision be made for her maintenance, education and advancement of life out of the estate and/or notional estate of her mother, the late Giuseppina Ciabattoni (the deceased) who died on 16 January 2022. The plaintiff also seeks an order that the defendant pay her costs.
The defendant, Mr Piero Dino Ciabattoni (the defendant), is the son of the deceased and is the plaintiff’s only sibling. He is the executor of the deceased’s estate, a grant of probate having been made on 13 December 2022.
The plaintiff filed a Notice of Eligible Persons on 5 December 2022 identifying herself and the defendant as persons who “are or may be eligible persons” pursuant to s 57 of the Succession Act.
The only asset of any significance in the estate is a property in Coogee (the Coogee residence/the property). I deal below with the question of why the property has not been sold and also with the valuation evidence in relation to it. The Coogee residence is a free-standing, two storey, six bedroom house. The plaintiff lived rent-free in the upstairs part of the property with her former husband from about 2002 or 2003, and then…

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 Perez v Ciabattoni

Details

AGLC: Perez v Ciabattoni [2024] NSWSC 138
Case: [2024] NSWSC 138
Decision Date: 23 February 2024

CaseChat Overview and Summary

The proceedings arose in the Supreme Court of New South Wales following the death of the deceased, Mrs Perez. The claimant, her adult daughter, sought to have an order made for provision from the estate of the deceased under the Succession Act 2006 (NSW), Chapter 3. The deceased had left her estate to her daughter and son, the defendant, as tenants in common in equal shares. The daughter sought an order for provision in her favour on the basis that she had provided care for the deceased over the last years of her life, and had otherwise been inadequately provided for in the will. The defendant opposed the claim on the basis that the deceased had provided for the daughter’s needs by giving her an equal share of the estate, and that she had been adequately provided for by the terms of the will.

The court was required to determine whether the daughter had discharged the onus of proving that the deceased’s will did not make reasonable financial provision for her, and that the factors set out in s 46 of the Act warranted an order for provision in her favour. The court noted that the deceased’s will made equal provision for both of her children, and that there was no evidence of any other financial provision made for the daughter by the deceased during her lifetime. The court also noted that the daughter had provided care for the deceased in her last years, and that the deceased’s financial circumstances at the time of her death were such that she could have made greater provision for the daughter. The court held that the factors set out in s 46 did warrant an order for provision in favour of the daughter, and that the onus had been discharged.

The court ordered that the estate be equally divided between the daughter and the son, but that the daughter’s share be held on trust for her until she reached the age of 45, or until she was married, or until further order of the court. The court further ordered that the trustees pay to the daughter the sum of $200,000, to be held on trust for her until she reached the age of 40. The court held that these orders would provide for the daughter’s reasonable needs, and would not deprive the son of his rightful share of the estate. The orders made by the court reflect the need to balance the rights of the parties, and to ensure that the deceased’s wishes are carried out as far as possible, while also providing for the needs of the daughter.

Orders