PIROZZI v PIROZZI
[2003] WASC 8
PIROZZI -v- PIROZZI & ORS [2003] WASC 8
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 8 | |
| Case No: | CIV:1720/2001 | 23 OCTOBER 2002 | |
| Coram: | ACTING MASTER CHAPMAN | 21/01/03 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANGELINO FRANCESCO PIROZZI DOMENICO GENNARO PIROZZI MARIA LUIGIA PIROZZI VLADIMIR VESELKO OZICH (as Executors of the Will of the Deceased) |
Catchwords: | Succession Inheritance Family maintenance Adequate provision Proper maintenance, support and advancement in life Will made by deceased Application for increased provision by youngest son Turns on own facts |
Legislation: | Inheritance (Family and Dependants Provision) Act 1972, s 6, s 7 |
Case References: | Cook & Anor v Cook, unreported; SCt of NSW; 14 October 1997 Grainger v The Public Trustee in and for the State of Western Australia as Administrator of the Estate of John Edward Webb Grainger & Ors, unreported; SCt of WA; Library No 950670; 6 December 1995 Anasson v Phillips, unreported; SCt of NSW (Young J); 4 March 1988 Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blanckensee & Ors [1989] WAR 305 Bosch & Anor v Perpetual Trustees Co Ltd [1938] AC 463 Clayton v Aust (1993) 9 WAR 364 Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494 Grey v Harrison [1997] 2 VR 359 Hughes v National Trustees Executors & Agency Co of Australia (1997) 143 CLR 134 Ingamells v Western Australian Trustees Ltd & Anor; unreported; SCt of WA; Library No 930117; 5 March 1993 Kazacos v Kazcos & Ors [2002] NSWSC 878 Paterson v Vaughan Charles Bunter as Executor of the Will of George Bunter [2000] WASC 83 Pereira v Patrick & Ors [2001] WASC 342 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Randell v Randell [1999] WASC 146 Re Allardice; Allardice v Allardice [1910] 29 NZLR 959 Re Allen (Dec); Allen v Manchester (1921) 41 NZLR 218 Re Bourke (Dec) and the TFM Act [1968] 2 NSWR 453 Re Fulop (Dec) (1987) 8 NSWLR 679 Re Howell; Howell v Lloyds Bank Ltd [1953] 1 WLR 1034 Schmidt v Watkins [2002] VSC 273 Singer v Berghouse (No 2) (1994) 181 CLR 201 Suffern v Suffern-Noble & Ors [2002] VSC 389 Vigolo v Bostin [2001] WASC 335 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
DOMENICO GENNARO PIROZZI
First Defendant
MARIA LUIGIA PIROZZI
Second Defendant
DOMENICO GENNARO PIROZZI
VLADIMIR VESELKO OZICH (as Executors of the Will of the Deceased)
Third Defendants
Catchwords:
Succession - Inheritance - Family maintenance - Adequate provision - Proper maintenance, support and advancement in life - Will made by deceased - Application for increased provision by youngest son - Turns on own facts
Legislation:
Inheritance (Family and Dependants Provision) Act 1972, s 6, s 7
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr I L K Marshall
First Defendant : Mr K E Yin
Second Defendant : Mr J J Hockley
Third Defendants : Mr V V Ozich
Solicitors:
Plaintiff : Moss and Co
First Defendant : Lynn Hudson
Second Defendant : Martella & Co
Third Defendants : V Ozich & Co
Case(s) referred to in judgment(s):
Cook & Anor v Cook, unreported; SCt of NSW; 14 October 1997
Grainger v The Public Trustee in and for the State of Western Australia as Administrator of the Estate of John Edward Webb Grainger & Ors, unreported; SCt of WA; Library No 950670; 6 December 1995
Case(s) also cited:
Anasson v Phillips, unreported; SCt of NSW (Young J); 4 March 1988
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee & Ors [1989] WAR 305
Bosch & Anor v Perpetual Trustees Co Ltd [1938] AC 463
Clayton v Aust (1993) 9 WAR 364
Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494
Grey v Harrison [1997] 2 VR 359
(Page 3)
Hughes v National Trustees Executors & Agency Co of Australia (1997) 143 CLR 134
Ingamells v Western Australian Trustees Ltd & Anor; unreported; SCt of WA; Library No 930117; 5 March 1993
Kazacos v Kazcos & Ors [2002] NSWSC 878
Paterson v Vaughan Charles Bunter as Executor of the Will of George Bunter [2000] WASC 83
Pereira v Patrick & Ors [2001] WASC 342
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Randell v Randell [1999] WASC 146
Re Allardice; Allardice v Allardice [1910] 29 NZLR 959
Re Allen (Dec); Allen v Manchester (1921) 41 NZLR 218
Re Bourke (Dec) and the TFM Act [1968] 2 NSWR 453
Re Fulop (Dec) (1987) 8 NSWLR 679
Re Howell; Howell v Lloyds Bank Ltd [1953] 1 WLR 1034
Schmidt v Watkins [2002] VSC 273
Singer v Berghouse (No 2) (1994) 181 CLR 201
Suffern v Suffern-Noble & Ors [2002] VSC 389
Vigolo v Bostin [2001] WASC 335
(Page 4)
- ACTING MASTER CHAPMAN:
Applications
1 The plaintiff by way of originating summons filed on 28 May 2001 seeks from the estate of the deceased, Francesco Pirozzi (the deceased), provision for his proper maintenance, support, education and advancement in life. On 29 January 2002, the second defendant sought leave to bring an application under the Inheritance (Family and Dependants Provision) Act 1972 (the Act) and be joined as a second plaintiff with the minute of originating summons filed on the same day to stand as the originating summons.
2 On 25 February 2002, Master Sanderson made an order that the claim of the second defendant be determined in these proceedings with costs reserved. The second defendant gave notice on 3 July 2002 that she would not proceed with her application under the Act. Thus, there is only one active application on foot.
Deceased
3 The deceased died on 4 November 2000 aged 68 and probate of his will was granted on 27 December 2000. He was divorced from Saveria Pirozzi in November 1997.
Estate
4 The net value of the estate at the date of death of the deceased was said to be $646,478. The assets of the estate have not been distributed and as at 11 September 2001, the third defendant deposes to the fact that the value of the estate was $899,993.31, with the cost of a headstone estimated at $5500 yet to be paid.
5 By agreement of the parties on 23 May 2002, it was agreed that the value of the real estate for the purpose of the proceedings was as follows:
"(a) 9 Millenden Street, East Fremantle $180,000.00 plus 5% namely $189,000.00;
(b) 27A Rudloc Road, Morley $250,000.00 plus 5% namely $262,500;
(c) 1A & 1B Sage Street, Embleton $230,000.00 plus 5% namely $241,500.00;
(Page 5)
- (d) 40 Robinson Street, Morley $175,000.00 plus 5% namely $183,750."
Parties
The plaintiff
6 The plaintiff is a son of the deceased aged 28 and since the deceased and his mother separated in 1991 he has lived with his mother. He is single and employed as a labourer, earning $418 per week. He has no formal qualifications.
7 His assets total approximately $172,500 on his evidence, but his brother considers the assets are worth $270,0000. On the evidence before me, I am inclined to the view that the value of the plaintiff's assets would be in excess of the $172,000 he says they are worth, albeit I am not necessarily persuaded that they would be of a value of $270,000.
8 Under the will of the deceased, the plaintiff is to receive $35,000 from the second defendant and has a contingent interest in a property at 27 Rudloc Road, Morley. The plaintiff deposes to the fact that he is presently employed and, although not earning a substantial income, he is earning sufficient to meet his expenses. Even if his assets are only valued at $172,000, in my view, the plaintiff has significant assets, particularly as he is only 28 years old.
9 There is a divergence of views as to the extent of his relationship with the deceased since his parents separated. It is said that the plaintiff and his mother were assaulted by the deceased and the first defendant on 2 July 1992 and a restraining order was obtained on 3 July 1992. I am not told what the terms of those orders were, or whether they would have prohibited the deceased from seeing the plaintiff. The plaintiff was 17 at the time of this incident and it is fair to say that, to some extent at least, he was a victim of the acrimonious break-up of the relationship between his mother and father.
10 In late 1999, the deceased took ill. As a result of a telephone call, the plaintiff attended upon the deceased on 6 January 2000 and continued to see the deceased until the time of his death. On the evidence before me, I am of the view that the contact was not as frequent as the plaintiff would have me believe. None the less, he was in a difficult position given the acrimony which existed between his parents and the first defendant and
(Page 6)
- his mother. I am not persuaded his behaviour towards his father was such as to disentitled him to a share of his father's estate.
First defendant
11 The first defendant is a son of the deceased aged 39. Under the will of the deceased, he is to receive $35,000 from the second defendant, the income from 27 Rudloc Road, Morley until the property is distributed, a contingent interest in that property and the residue of the estate.
Second defendant
12 The second defendant is 63 years old and commenced an intimate relationship with the deceased in December 1993. There is some dispute as to the true nature of the relationship. She describes it as a de facto relationship. Whilst the relationship might not have all of the hallmarks one might usually expect to find in such a relationship, in my view, that relationship is consistent with the description the deceased used to describe her in his will. On the evidence before me, I am satisfied that, at the date of death of the deceased, the second defendant was in a de facto relationship with the deceased.
13 Her surname is the same as that of the deceased, but she was not related to the deceased. Under the will, she is to receive the home and contents at 9 Millenden Street, East Fremantle, subject to paying the plaintiff and the first defendant each the sum of $35,000 or if those sums were not paid within 120 days of the death of the deceased, she is to receive half of the net proceeds of the sale of the property, with the remaining half to be divided equally between the plaintiff and the first defendant.
14 The respective sums of $35,000 have not been paid, despite the fact that the 120 days have passed. Notwithstanding this, the parties do not take issue with this and, thus, I have proceeded to deal with this matter on the basis that the second defendant will receive the property and the respective sums will be paid to the plaintiff and first defendant in due course.
15 A gift of approximately $31,000 was given to the second defendant during the lifetime of the deceased and he makes this clear in par 9 of his will.
(Page 7)
Mother of the plaintiff
16 The mother of the plaintiff is now aged 62. I am told that, on life expectancy tables, she has a life expectancy of a further 22.72 years.
General
17 On the evidence before me, I am satisfied that the break-up of the marriage of the parents of the plaintiff and the first defendant, and the property settlement, were acrimonious. From the order of the Family Court dated 24 September 1993, it is apparent that the property the subject of the settlement was substantial and that both the deceased and his wife received significant assets.
The will
18 When one reads the will of the deceased, it is clear this factor was at the forefront of his mind and he was anxious that each of his sons receive an equal distribution of the assets of the respective estates of their parents. I do not consider it helpful to speculate on whether the mother may remarry and whether she does or does not what the plaintiff may receive from her estate. On what is before me, I accept that the view the deceased held at the date of the making of his will was not unreasonable.
19 I think it helpful to examine par 5 of the will where these thoughts are expressed. It reads:
"5. In relation to my property at 27 Rudloc Road, Morley, I GIVE AND DEVISE this property to my Trustees upon trust to distribute (at their absolute and unfettered discretion) this property as between my two sons and upon the death of my former wife SAVERIA PIROZZII in such a manner that after taking into account the benefits which are derived by our sons from our respective Wills my Trustees shall divide this property in such a manner so that each of our sons benefits in totality from my Estate and from my former wife's Estate in more or less equal terms in value and in formulating my decision in regard to this property I have taken into account the following:
(Page 8)
- (a) my former wife and I have only two children, namely two sons, DOMENICO PIROZZI and ANGELO PIROZZI;
(b) most of my property was accumulated during my marriage to my former wife and most of her property was accumulated during the same period;
(c) although I am not certain I believe our respective Estates are valued at approximately the same amount;
(d) since my former wife and I separated my son ANGELO PIROZZI has lived with his mother and there has been little communication between my former wife and myself and until recently, little communication between my son ANGELO and myself'
(e) there has been little communication between my son DOMENICO PIROZZI and his mother;
(f) I believe that in all the circumstances it is likely that my former wife will leave her entire Estate upon her death to our son ANGELO PIROZZ1 and that she will leave little or nothing to our son DOMENICO PIROZZI;
(g) it is my desire that upon the death of myself and my wife that our two sons benefit as equally as reasonably possible from our Estates and that neither son is prejudiced as a result of the breakdown of the marriage between myself and my former wife;
(h) as in my opinion it is likely that my son DOMENICO PIROZZI will not inherit anything from his mother and the only benefits he will obtain will be by this Will and from my Estate, I have bequeathed most of my property to DOMENICO for his sole use and benefit immediately after my death in order that he may deal with this property to his advantage and I have been fully conscious that it may be some
(Page 9)
- considerable time before my son ANGELO is able to benefit from my Estate (if my Trustees so decide) insofar as the Rudloc Road, Morley property is concerned."
20 Counsel for the plaintiff submits that these provisions are most unsatisfactory, as (1) they leave to the absolute and unfettered discretion of the trustees how the Rudloc Road property is to be disposed of, and (2) it is likely that the mother of the plaintiff may marry in the future, or whether or not she does, she is likely to live at least some 20 years and, thus, the finalisation of this paragraph will be delayed.
21 It is apparent from a reading of the entire will that the deceased was well aware of those to whom he owed a moral duty. It is also clear that his intent was that his sons share equally the assets which he and their mother accumulated during their married life. In my view, that was eminently sensible and what one would expect a just and wise father to do. However, the effect of the will is that the plaintiff may have to wait some time before he receives the major portion of his inheritance, be it from the estate of his father or that of his mother. The deceased was aware of that, as is evidenced from par 5(h) of his will.
Adequacy of the provisions under the will
22 Counsel for the plaintiff submits that the will does not make adequate provision for the proper maintenance, education, support and advancement in life of the plaintiff, as the testator gives the bulk of his estate to the second defendant.
23 The fact that one son gets more than another under the will is not necessarily determinative of this question. In this case, the deceased has carefully set out, in par 5 of his will, what he wished to achieve and why. His wishes should be taken into consideration, along with other relevant factors. This view is supported by Steytler J in Grainger v The Public Trustee in and for the State of Western Australia as Administrator of the Estate of John Edward Webb Grainger & Ors, unreported; SCt of WA; Library No 950670; 6 December 1995, page 23:
"However there can, on the evidence, be no real doubt as to how it was that the deceased wished to see his estate disposed of and his wishes should, I think, be given weight, together with all of the other material circumstances, in considering what provision should be made for the applicant out of the deceased's estate."
(Page 10)
24 On a reading of the will, it is apparent that the deceased well understood those to whom he had a moral duty and he made provision for each of them. He also demonstrated he was aware of all of the relevant circumstances.
25 The will suggests the deceased did what the Full Court suggests is appropriate in Cook & Anor v Cook, unreported; SCt of NSW; 14 October 1997, where it was observed that the deceased should sit down to dispose of his estate with an appreciation of the extent to which his sons had suffered both personally and financially as a result of the breakdown of the marriage.
Test
26 It is accepted by the parties that this involves a two-stage process: (1) the jurisdictional question as to whether or not the plaintiff has been left without adequate provision for his proper maintenance, education, or support. If that is established, (2) what provision ought to be made out of the estate?
27 This approach was approved by Steytler J in Grainger where, at pages 9 - 10, he said:
"That question is essentially the first part of a two stage process contemplated by s6. Because the second stage, which requires the court to decide what provision ought to be made out of the deceased's estate for the plaintiff, only arises if the first results in a determination in favour of the plaintiff, that first stage has often, if inaccurately, been described as a 'jurisdictional' question. All that is intended to be conveyed by the use of that word in this context is that the court's power to make an order in favour of an applicant under s6(1) is conditioned upon the court being satisfied that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or both, is not such as to make adequate provision from the estate for the proper maintenance, support, education or advancement in life of the applicant (cf Singer v Berghouse (1994) 181 CLR 201 at 209 per Mason CJ, Deane and McHugh JJ).
The difference between the words 'proper' and 'adequate' was explained by Lord Romer in Bosch v Perpetual Trustee Co Ltd & Others [1938] AC 463 at 476 as follows:
(Page 11)
- 'The use of the word "proper" in this connection is of considerable importance. It connotes something different from the word "adequate". A small sum may be sufficient for the "adequate" maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his "proper" maintenance. So, too, a sum may be quite insufficient for the "adequate" maintenance of a child and yet may be sufficient for his maintenance on a scale that is "proper" in all the circumstances."
- Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571, after citing Bosch v Perpetual Trustee Co Ltd & Others, went on to say, of the word 'proper', that:
'It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent.'"
29 In the interim, he is a young man without any formal qualifications, but he is employed and has personal assets well in excess of $200,000. His income is modest, but it is more than adequate to meet his present needs. Indeed, if his evidence is to be believed, he had saved $38,000 by
(Page 12)
- 1998 and in a period of approximately 11 months he paid off a loan of $12,000 which he took out to purchase his brother's share of a property in Bullsbrook.
30 On the evidence before me, I am satisfied that his income and the assets he has accumulated are more than adequate for his maintenance, support, education and advancement in life. Having satisfied myself that the provision was adequate, I turn to consider whether or not it was proper.
31 I am of the view that the lifestyle of the plaintiff will continue in much the same way as it did before the death of his father. In the future there is the real probability he will benefit further, either from his father's estate or that of his mother. The assets of the plaintiff are significant, particularly given his age and he has clearly demonstrated that he has the capacity to save a considerable amount from his income.
32 Given the particular circumstances of this case, I consider that the provisions made for the plaintiff by the deceased under his will are proper. For these reasons, I am not satisfied that the testator, as at the date of his death, failed to make adequate provision for the plaintiff's proper maintenance, education or advancement in life. Having reached that conclusion, it is not necessary to go to the next stage of the process. Accordingly, the application will be dismissed.
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