Pizimolas v Pizimolas - [2010] SASCFC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PIZIMOLAS v PIZIMOLAS & ANOR
[2010] SASCFC 34
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Sulan)
23 September 2010
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - OTHER MATTERS
SUCCESSION - FAMILY PROVISION AND MAINTENANCE - FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN
REAL PROPERTY - GENERAL PRINCIPLES - EJECTMENT - MESNE PROFITS
Appeal against decision of Judge of this Court dismissing the appellant’s claim under section 7 of the Inheritance (Family Provision) Act 1972 (SA) that greater provision for him be made out of the estate of his mother – whether Judge proceeded on a misapprehension of facts – whether deceased made inadequate provision for appellant, a disabled son.
Held: Appeal allowed – conclusion that there were respective needs of the other beneficiaries of the deceased’s estate was not supported by the evidence – appellant has made out his claim for maintenance and advancement – appellant to receive legacy of $100,000.00 from the estate, the residue of the estate to be divided equally between appellant and respondents.
Inheritance (Family Provision) Act 1972 (SA) s 7, referred to.
Pizimolas v Pizimolas & Zannis [2010] SASC 158; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin (2005) 221 CLR 191; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; McCosker v McCosker (1957) 97 CLR 566, considered.

PIZIMOLAS v PIZIMOLAS & ANOR
[2010] SASCFC 34
Full Court Doyle CJ, Gray and Sulan JJ

DOYLE CJ: I agree with the orders proposed by Gray J. I agree with his reasons for making those orders.
GRAY J.
Introduction
This is an appeal from a decision of a Judge of this Court dismissing a claim under the Inheritance (Family Provision) Act 1972 (SA).
Maria Pizimolas migrated to Australia from Greece with her husband Yannis in about 1950 accompanied by their two children Irene, born 26 September 1945 and Phillip, born 15 December 1949. Stavros, the youngest child, was born in Australia on 28 March 1957. Yannis died on 12 June 2003 and Maria on 27 September 2007. The only asset of any substance in Maria’s estate is the family home at Norwood.
The Judge dismissed several claims made by Stavros, the plaintiff and appellant. Those claims included a claim for further provision from the estate of Maria pursuant to the provisions of the Inheritance (Family Provision) Act. It is the dismissal of this claim and consequential costs orders that are pursued on appeal. Stavros also complained about an order made on a counterclaim brought by Maria’s executors, Irene and Phillip, that he pay $12,000.00 by way of mesne profits.
On the hearing of the appeal, counsel for Irene and Phillip, the defendants and respondents and the other beneficiaries named in her will, accepted…

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 Pizimolas v Pizimolas

Details

AGLC: Pizimolas v Pizimolas [2010] SASCFC 34
Case: [2010] SASCFC 34
Decision Date: 23 September 2010

CaseChat Overview and Summary

The appeal concerned a claim brought by the appellant, Stavros Pizimolas, under section 7 of the *Inheritance (Family Provision) Act 1972* (SA) against the estate of his deceased mother, Maria Pizimolas. Stavros, who is a disabled son, alleged that his mother's testamentary dispositions had left him without adequate provision for his proper maintenance, education, or advancement in life. The appeal was brought before the Full Court of the Supreme Court of South Australia, with Doyle CJ, Gray and Sulan JJ presiding.

The central legal issues before the Full Court were whether the primary judge had erred in dismissing Stavros's claim, whether the primary judge had proceeded on a misapprehension of the facts, and whether the deceased had indeed made inadequate provision for Stavros, considering his disability. The court was required to consider the principles governing applications for family provision, particularly the assessment of "adequate provision" and "proper maintenance, education or advancement in life" in the context of the deceased's estate and the needs of all beneficiaries.

The Full Court allowed the appeal, finding that the primary judge's conclusion regarding the respective needs of the other beneficiaries was not supported by the evidence. The court applied the principles of family provision legislation, as discussed in cases such as *Vigolo v Bostin*, which require a two-stage approach: first, determining what provision would be adequate, and second, deciding what provision would be proper and fit. The court determined that Stavros had made out his claim for maintenance and advancement.

Consequently, the Full Court ordered that Stavros receive a legacy of $100,000.00 from the estate. The residue of the estate was to be divided equally between Stavros and the respondents. The order for mesne profits against Stavros for his occupancy of the Norwood home was set aside, with the understanding that he could continue to occupy the home free of rent until a specified date, though he would be responsible for outgoings. The parties were to be heard on the precise terms of the order, including the date Stavros was to vacate the property and on costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

There is one further matter to be addressed. The Judge upheld a claim made by Irene and Phillip in their capacity as executors for mesne profit. In that respect the Judge ordered that Stavros pay $12,000.00 for his continued occupancy of the Norwood home from the date of Maria’s death to the date of trial. In my view this order should be set aside. In fixing a legacy of $100,000.00, I have proceeded on the basis that Stavros should have been able to continue to occupy the Norwood home free of payment by way of rent until the date of judgment and a short time thereafter. Stavros should be responsible for the rates and taxes and other outgoings of the property from the date of Maria’s death until he ceases occupation. I have also had regard to the fact that the rest and residue in which Stavros has a one-third interest will be reduced pro rata by the legacy of $100,000.00.Conclusion I would allow the appeal. I would hear the parties as to the terms of the order to be made including the date on which Stavros is to vacate the Norwood home, and as to costs. SULAN J: I would allow the appeal. I agree with the reasons of Gray J and the orders that he proposes.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

In these circumstances, as earlier discussed, the reasons of the Judge are flawed. A Reconsideration Section 7(1) of the Inheritance (Family Provision) Act provides:(1) Where—(a) a person has died domiciled in the State or owning real or personal property in the State; and(b) by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled. Analogous statutory provisions to those relevant in the present proceeding were discussed by the High Court in Vigolo v Bostin.[7] Gleeson CJ summarised the legislative position as follows:The general structure of the Act follows a form familiar in all Australian States, and pioneered in New Zealand. The key provision is s 6. The power of a court to make an order under the Act is enlivened by the formation of an opinion that the disposition of the deceased's estate effected by will, or the law relating to intestacy, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of a person mentioned in s 7. The court is empowered, at its discretion, to order that such provision as the court thinks fit is made out of the estate of the deceased for that purpose. An order takes effect as a codicil to the will, or in the case of intestacy, as a modification to the applicable rules of distribution (s 10). What has been described as the two-stage approach to the exercise of such a statutory power was explained by this Court in Singer v Berghouse, and is not in controversy in this appeal. It is evident that, depending upon the stage of consideration involved, the following judgments are required by the terms of s 6. What kind of provision for the matters referred to in that section should be regarded as adequate? What should be regarded as proper maintenance, support, education or advancement in life in the case of a particular applicant? If the court comes to exercise its discretion to make an order in favour of an applicant, what should it regard as fit provision for the purposes referred to in the section? Upon whom should the burden of such an order fall? Each of those judgments is to be made by reference to criteria that are expressed in the most general terms. Two of the key words are "proper" and "fit". Fitness and propriety are value-laden concepts. Those values must have a source external to the decision-maker. Morality is the source of many of the values that are expressed in the common law, in statutes, and in discretionary judicial decision-making. …These basic features of what is commonly called testator's family maintenance legislation have existed in Australia for almost a century. Such legislation is imbued with concepts of entitlement and disentitlement, claims and obligations, propriety and fitness, related to questions of inheritance. Australian courts, guided by decisions of this Court and of the Privy Council, have interpreted and applied the legislation by giving it a purposive construction. In its original form, the legislation conferred upon courts, in limited circumstances, a discretionary power to interfere with the exercise of freedom of testamentary disposition. Where such an interference was regarded as justified, it defeated the intention of a testator, and conferred a benefit upon an applicant at the expense of others whom the testator intended to benefit. From the beginning, a number of fundamental issues were obvious. Was this an extensive power to re-write a testator's will to make it conform to a judge's idea of how an estate should be distributed, or was it more limited, and, if so, in what way? Were issues of adequacy and propriety to be decided by reference only to minimum standards of subsistence? Was this merely a power to relieve the state of the burden of supporting indigent people? What account was to be taken of the expectations and needs of persons other than an applicant where a testator had made provision for such persons? In what circumstances should a testator's decision to disinherit a family member on grounds of character or conduct prevail?[footnote omitted][7] Vigolo v Bostin (2005) 221 CLR 191 at 196-198.