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Pizzino v Pizzino

Pizzino v Pizzino

Case [2010] QSC 35 15 February 2010

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SUPREME COURT OF QUEENSLAND

CITATION:

Pizzino v Pizzino & Anor [2010] QSC 35

PARTIES:

TONY JOHN PIZZINO

(applicant)
v
JOYCE ANGELA PIZZINO and SALVATORE PIZZINO (as executor of the will of MARIA PIZZINO, deceased)
(respondents)

FILE NO:

BS975 of 2008

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

15 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

23-24 September 2009

JUDGE:

Mullins J

ORDER:

That further and better provision for the applicant Tony John Pizzino be made out of the estate of Maria Pizzino, deceased (the deceased) by reading and construing the last will of the deceased dated 27 April 2007 as if the following sub-clauses (a) and (b) were substituted for sub-clause (a) of clause 3 of the will:
(a) As to a one-quarter share thereof to my son TONY PIZZINO for his sole use and benefit absolutely.
(b) As to a one-quarter share thereof to my grandchildren JASON PIZZINO, ANDREW PIZZINO and MICHAEL PIZZINO as shall survive me and if more than one then in equal shares as tenants in common for their own sole use and benefit absolutely.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR THE APPLICANT – WHETHER THE APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIM BY ADULT SON – large estate – where applicant had a gambling addiction and substance abuse problem in the years leading up to his mother’s death – where applicant owed significant debts and had no assets – where one-half of the estate left to deceased’s daughter and the other half share equally between the applicant and his three sons – where the deceased aware of the applicant’s needs, but concerned that he could not manage his finances – where the applicant otherwise had a close relationship with the deceased – whether the applicant was left without adequate provision for his proper maintenance and support – whether there was disentitling conduct on the part of the applicant – further provision ordered by increasing the applicant’s share of the estate to a one-quarter share and diminishing his sons’ interests accordingly

Succession Act 1981, s 41

Hastings v Hastings [2008] NSWSC 1310, considered

Hills v Chalk [2008] QCA 159, considered

Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, followed
Hunter v Hunter (1987) 8 NSWLR 573, considered
Re May [2000] QSC 478, considered
Singer v Berghouse (1994) 181 CLR 201, followed
Vigolo v Bostin (2005) 221 CLR 191, considered
White v Barron (1980) 144 CLR 431, considered

COUNSEL:

D J Morgan for the applicant
T W Quinn for the respondents

S J Lee for the beneficiaries A G, J S & M T Pizzino

SOLICITORS:

Woods Prince for the applicant
de Groots Wills & Estate Lawyers for the respondents

A M McNally for the beneficiaries A G, J S & M T Pizzino

The applicant is the son of Mrs Maria Pizzino (the deceased) who died on 10 May 2007.…

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 Pizzino v Pizzino

Details

AGLC: Pizzino v Pizzino [2010] QSC 35
Case: [2010] QSC 35
Decision Date: 15 February 2010

CaseChat Overview and Summary

The case of Pizzino v Pizzino involved Tony Pizzino, the applicant and son of Maria Pizzino, who had passed away. Tony sought to argue that the will of his mother did not provide sufficient provision for his proper maintenance and support, despite the estate being substantial. Maria's will left half of her estate to Tony's sister and the other half equally between Tony and his three sons. The central legal issues in the case were whether Tony was left without adequate provision for his maintenance and support, and if his conduct disentitled him from claiming further provision.

The court examined the circumstances of Tony's life, including his gambling addiction, substance abuse, and significant debts. Although Tony had a close relationship with his mother, Maria had concerns about his ability to manage his finances. The court had to balance these factors against Tony's need for proper maintenance and support. Ultimately, the court found that Tony's gambling addiction and substance abuse did not entirely disentitle him from making a claim, but his conduct did warrant a reduction in his share of the estate. Consequently, the court ordered that Tony's share of the estate be increased to a one-quarter share, with the remaining quarter being divided equally among his three sons.

The final orders of the court specified that the will should be construed to reflect the adjustments made to the distribution of the estate, with Tony receiving a one-quarter share and his sons sharing the remaining quarter equally. This decision ensures that Tony has adequate provision for his maintenance and support while also considering the disentitling impact of his conduct.

Orders

Orders of the court

That further and better provision for the applicant Tony John Pizzino be made out of the estate of Maria Pizzino, deceased (the deceased) by reading and construing the last will of the deceased dated 27 April 2007 as if the following sub-clauses (a) and (b) were substituted for sub-clause (a) of clause 3 of the will:

(a) As to a one-quarter share thereof to my son TONY PIZZINO for his sole use and benefit absolutely.

(b) As to a one-quarter share thereof to my grandchildren JASON PIZZINO, ANDREW PIZZINO and MICHAEL PIZZINO as shall survive me and if more than one then in equal shares as tenants in common for their own sole use and benefit absolutely.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Pizzino v Pizzino [2010] QSC 35

Most Recent Citation

Poole v Barrow [2014] VSC 576

Cases citing this decision · 8 of 8 shown

Speechley v Willemyns
[2023] QDC 154 Para 3

…ropriate award.[15] As was noted in Hartley v Hartley :[16] “The observations by Mullins J (as her Honour then was) in Pizzino v Pizzino & Anor [2010] QSC 35 at [49]-[55] are a sufficient summary for present purposes of the approach to be taken in relation to such applications: “There was no issue between the pa…
McDermott v McDermott
[2023] QSC 163 Para 6

…not entitle the court to rewrite the will in accordance with its own ideas of fairness or justice: Hughes at 146.” [11][2022] QCA 96. [12][2010] QSC 35 at [49]–[55].…
Hartley v Hartley
[2022] QCA 96 Para 1

…The observations by Mullins J (as her Honour then was) in Pizzino v Pizzino & Anor [2010] QSC 35 at [49]-[55] are a sufficient summary for present purposes of the approach to be taken in relation to such applications: “There was no issue between the parties about the application of the two stage process that s 4…
Hartley v Hartley
[2021] QDC 323 Para 36

…v Reed (SC (NSW) Eq Div, Powell J, Nos 4431/88 and 4432/88, 21 March 1991 and 15 April 1991, unreported). [14]Cf. Pizzino v Pizzino & Anor [2010] QSC 35 at [64] per Mullins J (as she then was); Christie v Edward [2012] WASC 265 at [22] per McKechnie J, and Killiner v Freeman [2000] NSWSC 263 at [50] – [51] per…
Lambert v Lambert
[2018] QSC 304 Para 3

…bled bodied adult, has no claim.[2] [2] See, e g, Gorton v Parks (1989) 17 NSWLR 1, 7; Young & Grainger v Outtrim [2011] NSWSC 391; Pizzino v Pizzino [2010] QSC 35 at [49]-[51].…
Stewart v Stewart
[2015] QSC 238 Para 1

…it is necessary or appropriate to provide a trust to protect the capital that is awarded to Michael. [13] [2014] NSWSC 371 at [144] – [149]. [14] [2010] QSC 35 at [68].…
Poole v Barrow
[2014] VSC 576

…[36][2010] QSC 35 (15 February 2010).…
Christie v Edward
[2012] WASC 265

…] NSWSC 1310 Kleinig v Neal [No 2] (1981) 2 NSWLR 532 Mulhall v Permanent Trustee [2004] NSWSC 365 Palmer v Dolman [2005] NSWCA 361 Pizzino v Pizzino [2010] QSC 35 Walker v Walker (Unreported, SCNSW, BC 9602381, 17 May 1996)…

View all 8 citing cases →

Cases cited in this decision · 9 of 9 shown

Hunter v Hunter (No 3)
[2015] QSC 277 Para 1

…ude that applicant from endeavouring to satisfy the two stage process to obtain further provision from the testator’s estate: Hunter v Hunter (1987) 8 NSWLR 573, 581-582.…
Hastings v Hastings
[2008] NSWSC 1310 Para 1

…Although involvement with illicit substances itself may, in some circumstances, amount to disentitling conduct (such as in Hastings v Hastings [2008] NSWSC 1310), the applicant’s circumstances and behaviour, as I have found them to be, are not sufficiently serious to be characterised as disentitling conduct.…
Hills v Chalk
[2008] QCA 159 Para 1

…aims on her bounty: Singer at 210. The nature of the inquiry undertaken by the court on the jurisdictional question was analysed in Hills v Chalk [2008] QCA 159 at [39]-[41] (per Keane JA), [128]-[139] (per Muir JA) and [212] (per Fraser JA).…
Vigolo v Bostin
[2005] HCA 11 Para 1

…eane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201, 208-209 ( Singer ), as approved by Gleeson CJ and Gummow and Hayne JJ in Vigolo v Bostin (2005) 221 CLR 191 at [37], [74] and [82]-[83] ( Vigolo ).…
Alquist v ANZ Executors and Trustee Company Limited
[2004] NSWSC 1116 Para 1

…racterised as a “lame duck” ( Re Hatte [1946] St R Qd 1, 26) and relied on authorities (such as Alquist v ANZ Executors & Trustee Company Limited [2004] NSWSC 1116) in which the very qualities of an applicant that had persuaded the testator not to provide (or to provide minimally) for that applicant under the will c…
Re May
[2000] QSC 478 Para 1

…sidering whether an applicant has been left without adequate provision for that applicant’s proper maintenance and support is illustrated by Re May [2000] QSC 478 at [17].…
Singer v Berghouse
[1994] HCA 40 Para 1

…ss that s 41(1) of the Act requires the court to undertake, as explained in the joint judgment of Mason CJ, Deane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201, 208-209 ( Singer ), as approved by Gleeson CJ and Gummow and Hayne JJ in Vigolo v Bostin (2005) 221 CLR 191 at [37], [74] and [82]-[83] ( Vigolo ).…
White v Barron
[1980] HCA 14 Para 1

…etion on whether to make an order in favour of the applicant by reference to the circumstances as they exist at the date of the order: White v Barron (1980) 144 CLR 431, 444.…
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd
[1979] HCA 2 Para 1

…to be different, no different tests apply to an applicant who is an adult son: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, 146 ( Hughes ) and Vigolo at [26].…

Legislation cited in this decision · 1

Succession Act 1981 (Qld)
41 1 mention

CITATION:	Pizzino v Pizzino & Anor [2010] QSC 35
PARTIES:	TONY JOHN PIZZINO (applicant) v JOYCE ANGELA PIZZINO and SALVATORE PIZZINO (as executor of the will of MARIA PIZZINO, deceased) (respondents)
FILE NO:	BS975 of 2008
DIVISION:	Trial Division
PROCEEDING:	Originating Application
DELIVERED ON:	15 February 2010
DELIVERED AT:	Brisbane
HEARING DATE:	23-24 September 2009
JUDGE:	Mullins J
ORDER:	That further and better provision for the applicant Tony John Pizzino be made out of the estate of Maria Pizzino, deceased (the deceased) by reading and construing the last will of the deceased dated 27 April 2007 as if the following sub-clauses (a) and (b) were substituted for sub-clause (a) of clause 3 of the will: (a) As to a one-quarter share thereof to my son TONY PIZZINO for his sole use and benefit absolutely. (b) As to a one-quarter share thereof to my grandchildren JASON PIZZINO, ANDREW PIZZINO and MICHAEL PIZZINO as shall survive me and if more than one then in equal shares as tenants in common for their own sole use and benefit absolutely.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR THE APPLICANT – WHETHER THE APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIM BY ADULT SON – large estate – where applicant had a gambling addiction and substance abuse problem in the years leading up to his mother’s death – where applicant owed significant debts and had no assets – where one-half of the estate left to deceased’s daughter and the other half share equally between the applicant and his three sons – where the deceased aware of the applicant’s needs, but concerned that he could not manage his finances – where the applicant otherwise had a close relationship with the deceased – whether the applicant was left without adequate provision for his proper maintenance and support – whether there was disentitling conduct on the part of the applicant – further provision ordered by increasing the applicant’s share of the estate to a one-quarter share and diminishing his sons’ interests accordingly Succession Act 1981, s 41 Hastings v Hastings [2008] NSWSC 1310, considered Hills v Chalk [2008] QCA 159, considered Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, followed Hunter v Hunter (1987) 8 NSWLR 573, considered Re May [2000] QSC 478, considered Singer v Berghouse (1994) 181 CLR 201, followed Vigolo v Bostin (2005) 221 CLR 191, considered White v Barron (1980) 144 CLR 431, considered
COUNSEL:	D J Morgan for the applicant T W Quinn for the respondents S J Lee for the beneficiaries A G, J S & M T Pizzino
SOLICITORS:	Woods Prince for the applicant de Groots Wills & Estate Lawyers for the respondents A M McNally for the beneficiaries A G, J S & M T Pizzino