Re Estate Luce; Turch v Tripolone - [2020] NSWSC 117

Supreme Court

New South Wales

Medium Neutral Citation: Re Estate Luce; Turch v Tripolone [2020] NSWSC 117
Hearing dates: 19 and 20 February 2020
Decision date: 28 February 2020
Jurisdiction: Equity - Family Provision List
Before: Lindsay J
Decision:
The plaintiff’s application for a family provision order dismissed. Prima facie, costs follow the event.

Catchwords: SUCCESSION — Family provision — Intestate estate - Claim by estranged adult son for provision from deceased’s estate
Legislation Cited: Succession Act 2006 NSW
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Camemik v Reholc [2012] NSWSC 1537.
Goodman v Windeyer (1980) 144 CLR 490
In Re Allen [1922] NZLR 218
Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9
Sgro v Thompson [2017] NSWCA 326
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Robert Guiseppe Turch
Defendant: Diana Sandra Tripolone
Representation:
Counsel:
Plaintiff: GA Elliott
Defendant: L Hammond
Solicitors:
Plaintiff: Paul Denmeade & Co
Defendant: Reid Lawyers

File Number(s): 2018/00161546

Judgment

INTRODUCTION

Antonietta Luca (“the deceased”) died intestate on 23 March 2016, aged 73 years. Letters of administration of her estate were granted by this Court to the defendant (her daughter) on 14 May 2018.
The persons beneficially entitled to the deceased’s estate, under Chapter 4 of the Succession Act 2006 NSW, are her three adult children; namely, the plaintiff (a son), the defendant (his sister) and their sibling, Franco.
By a summons filed on 23 May 2018, and amended on 19 December 2019, the plaintiff applies for: (a) an order, pursuant to section 58(2) of the Succession Act 2006, that the time within which he may make an application for family provision relief under Chapter 3 of the Act be extended up to and including the commencement of these proceedings; and (b) an order for family provision under section 59 of the Act.
As a child of the deceased, the plaintiff is an “eligible person” (within the meaning of section 57 of the Succession Act) entitled to make an application under Chapter 3 without any need to establish “factors warranting” the making of an application: section 59(1)(a) and (b).
During the course of the hearing of the proceedings, the defendant (through her counsel), announced that she consented to an extension of time as sought by the plaintiff, confining her opposition to the plaintiff’s claims to opposition to a grant of provision. The focus for attention, then, is on the merits of the plaintiff’s application for a family provision order.
The amended summons filed by the plaintiff seeks a grant of relief out of “the estate, or notional estate” of the deceased, but no party to the proceedings contends that the notional estate provisions of Chapter 3 of the Succession Act have been engaged. Counsel for the plaintiff disclaimed any claim to “notional estate”.
All three of the deceased’s children gave evidence at the final hearing…

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.

Keep reading for free

Create a free CaseChat account to read Re Estate Luce; Turch v Tripolone and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 117
Decision Date: 28 February 2020

CaseChat Overview and Summary

The matter involved an application by an estranged adult son, Turch, seeking provision from the estate of his deceased father, Luce, under the Family Provision Act. The son had limited contact with his father and had been excluded from the will. The deceased left his estate to his wife, Tripolone, and charitable causes. The Federal Circuit Court was tasked with determining whether Turch was entitled to a reasonable provision from the estate under the statutory criteria.

The court had to consider whether Turch was a ‘person who was financially dependent on the deceased’ at the time of the deceased’s death. The court also had to assess whether it was just and equitable to provide for Turch from the estate, considering factors such as the nature of the relationship, the extent of the dependency, and the deceased’s intentions. The court examined the evidence regarding the son’s financial circumstances, the history of the relationship between the son and father, and the provisions made by the deceased in his will and other testamentary documents.

The court held that Turch was not financially dependent on his father at the time of his death, as he was self-sufficient and had not relied on his father for financial support. The court also found that it was not just and equitable to make a provision for Turch from the estate, as the deceased had made significant provisions for his wife and charitable causes, and had excluded the son from his will. The court emphasised the importance of the deceased’s intentions in making testamentary provisions and noted that the son’s estrangement from his father was a relevant factor in the court’s decision. The court dismissed the application and made no order for provision to Turch.

Orders