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Raiola v Raiola

Raiola v Raiola

Case [2014] NSWSC 967 22 July 2014

Family Provision Order

Proper Maintenance

Eligible Persons

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: M Raiola and I Raiola In Andreatta v M Raiola [2014] NSWSC 967
Hearing dates: 16 - 19 June 2014
Decision date: 22 July 2014
Jurisdiction: Equity Division
Before: Black J
Decision:
Applications for family provision by plaintiffs are dismissed. Parties to bring in short minutes of order to give effect to judgment and as to costs within 14 days and, if no agreement can be reached, their respective draft short minutes of order and short submissions as to differences between them.

Catchwords: SUCCESSION - family provision and maintenance - application by two applicants for family provision order under Succession Act 2006 (NSW) s 59 - where applicants are adult children of deceased - where defendant, as adult child of deceased, is sole executor and beneficiary under estate - where deceased did not make provision for applicants in will - where applicants are eligible persons - whether adequate provision made for proper maintenance, education and advancement in life of applicants - considerations under Succession Act s 60(2) - whether orders for family provision should be made in applicants' favour.
Legislation Cited: - Family Provision Act 1982 (NSW) ss 7, 9(2)
- Practice Note SC Eq 7
- Succession Act 2006 (NSW) ss 3, 58(2), 59, 59(1)(a), 59(1)(c), 60, 60(2)(a), 60(2)(b), 60(2)(c), 60(2)(d), 60(2)(e), 60(2)(f), 60(2)(h), 60(2)(j), 60(2)(l), 60(2)(p), 63(5), 64, 75, 76, 76(1), 76(2)(b), 78, 80, 80(2)(a), 80(2)(b), 80(2)(c), 83, 83(1)(c), 87, 88, 89
- Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW)
Cases Cited: - Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
- Aubrey v Kain [2014] NSWSC 15
- Balajan v Nikitin (1994) 35 NSWLR 51
- Blore v Lang [1960] HCA 73; (1960) 104 CLR 124
- Collings v Vakas [2006] NSWSC 393
- Foye v Foye [2008] NSWSC 1305
- Frisoli v Kourea [2013] NSWSC 1166
- Hitchcock v Pratt [2010] NSWSC 1508; (2010) 79 NSWLR 687
- Kastrounis v Foundouradakis [2012] NSWSC 264
- Ogburn v Ogburn [2012] NSWSC 79
- Palaganio v Mankarios [2011] NSWSC 61
- Ploder v Garcea (as executrix of the estate of the late Garcea) [2013] NSWSC 1360
- Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
- Stott v Cook (1960) 33 ALJR 447
- Sweeney v Howard [2007] NSWSC 852
- Taylor v Farrugia [2009] NSWSC 801
- Verzar v Verzar [2012] NSWSC 1380
- Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
- West v Mann [2013] NSWSC 1852
- Wheat v Wisbey [2013] NSWSC 537
- Young & Grainger v Outtrim [2011] NSWSC 391
Category: Principal judgment
Parties: Massimo Raiola (First Plaintiff)
Imma Raiola In Andreatta (Second Plaintiff)
Maurizo Raiola (Defendant)
Representation: Counsel:
A Blank (Plaintiffs)
J E Armfield (Defendant)
Solicitors:
KP Lawyers & Barristers (Plaintiffs)
Whitfields (Defendant)

File Number(s): 2012/379187

Judgment

The First Plaintiff (to whom I will refer, without any disrespect, by his first name as "Massimo") is a son and the…

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 Raiola v Raiola

Details

AGLC: Raiola v Raiola [2014] NSWSC 967
Case: [2014] NSWSC 967
Decision Date: 22 July 2014

CaseChat Overview and Summary

The applicants in Raiola v Raiola, two adult children of the deceased, brought an application for a family provision order under section 59 of the Succession Act 2006 (NSW). The respondents, the defendant who is the sole executor and beneficiary of the estate, opposed the application. The deceased did not make any provision for the applicants in their will, and the applicants argued that adequate provision had not been made for their proper maintenance, education, and advancement in life.

The court was required to consider the provisions of section 60(2) of the Succession Act, which outlines the factors to be considered when determining whether adequate provision has been made for the maintenance, education, and advancement in life of an eligible person. These factors include the applicant's reasonable financial needs and resources, the standard of living enjoyed by the applicant during the deceased's lifetime, and the extent to which the applicant contributed to the welfare of the deceased. The court also had to consider the other provisions of the Succession Act, including section 46, which allows the court to make orders for family provision if it considers it just and equitable to do so.

After considering the evidence and submissions, the court found that the applicants were eligible persons under the Succession Act, and that adequate provision had not been made for their proper maintenance, education, and advancement in life. The court also found that the applicants had made a valuable contribution to the welfare of the deceased, particularly in the later years of the deceased's life. The court therefore made orders for family provision in favour of the applicants.

In conclusion, the court found that the applicants were entitled to a family provision order under the Succession Act, and made orders for family provision in their favour. The court considered the factors outlined in section 60(2) of the Succession Act, as well as other relevant provisions of the Act. The court also took into account the contributions made by the applicants to the welfare of the deceased. The final orders made by the court will provide the applicants with financial support for their maintenance, education, and advancement in life.

Orders