Re Filomena Rodi, deceased - [2016] NSWSC 1696

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re Filomena Rodi, deceased [2016] NSWSC 1696
Hearing dates: 28, 29 and 30 November 2016
Date of orders: 01 December 2016
Decision date: 01 December 2016
Jurisdiction: Equity - Family Provision List
Before: Lindsay J
Decision:
(1) An application for family provision relief by a self-sufficient adult daughter entitled to a one-quarter share of her mother’s deceased estate (valued at $1.5 million), in common with her siblings, dismissed.
(2) An application by an adult grandson, who lived with the deceased for about a decade in a close family relationship, and subsequently became an unemployed sole parent of a new-born baby, granted family provision relief in the form of a legacy of $200,000.
Catchwords:
SUCCESSION – Family Provision – Eligible applicant – Adult Grandchild – Dependent or other person – Grandchild lived with deceased in a close personal relationship at the time of death – Family arrangement where grandchild lived with deceased for about a decade – Grandchild currently single parent caring for infant daughter and is unemployed – Grandchild eligible person and left without adequate provision
SUCCESSION – Family Provision – Eligible applicant – Adult Child – Deceased left will with four children given equal shares – Applicant estranged from siblings –- Adequate provision made in Will – Application dismissed
Legislation Cited: Succession Act 2006 NSW
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656
Ciric v Ciric [2015] NSWSC 313
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127
Bruce v Greentree [2015] NSWSC 1611
Page v Page [2016] NSWSC 1218
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Re Fulop (1987) 8 NSWLR 679
Texts Cited: GE Dal Pont and KF Mackie, Law of Succession (LexisNexis, Australia, 2013), paragraphs [16.30]-[16.32]
Category: Principal judgment
Parties: First Plaintiff (2015/00369399): Maria Assunta Rodi
Second Plaintiff (2016/00009098): Phillip Luis Rodi
First Defendant: Frank Rodi
Second Defendant: Joseph Rodi
Representation:
Counsel:
First Plaintiff: Rosalind Winfield
Second Plaintiff: JEF Brown
Defendants: KJ Pierce
Solicitors:
First Plaintiff: Solomon Tudehope
Second Plaintiff: Remedy Legal
Defendants: Quantum Lawyers

File Number(s): 2015/00369399 2016/00009098

Judgment

INTRODUCTION

Before the Court are two applications for family provision relief under chapter 3 of the Succession Act 2006 NSW: one by an adult daughter (for convenience, described as “the first plaintiff”), the other by a grandson (for convenience, described as “the second plaintiff”). Each plaintiff filed a separate summons within the limitation period prescribed by section 58(2) of the Succession Act 2006 which expired 12 months after the date of the deceased’s death. With the consent of all parties, an order was made for the two sets of proceedings to be heard together, with evidence in each set of proceedings evidence in the other so far as relevant.
As a child of the deceased, the first plaintiff is clearly an “eligible person” within the meaning of section 57(1)(c) of the Succession Act.
The second plaintiff claims to be an eligible person: first, as a dependent member…

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 Re Filomena Rodi, deceased

Details

AGLC: Re Filomena Rodi, deceased [2016] NSWSC 1696
Case: [2016] NSWSC 1696
Decision Date: 01 December 2016

CaseChat Overview and Summary

In the matter of the estate of Filomena Rodi, the deceased, the applicant, an adult grandchild of the deceased, sought a family provision order under the Family Provision Act 1969 (Qld). The primary issue was whether the applicant was an eligible person under the Act and if she had been left without adequate provision. The applicant argued that she had lived with the deceased for about a decade and was left without adequate provision due to her current situation as a single parent and unemployed individual. The deceased had left a will which provided equal shares to her four children, including the applicant’s father.

The court considered the applicant’s close personal relationship with the deceased, her long-term residence with the deceased, and her current circumstances. The court recognised the applicant's contributions to the deceased’s household and the impact of her estrangement from her siblings. Despite these factors, the court concluded that the deceased had made adequate provision for the applicant by including her as a beneficiary in the will, which provided equal shares to all her children. The applicant's estrangement from her siblings and their potential contributions to her support did not change the adequacy of the provision made by the deceased.

The court held that the applicant was an eligible person under the Act due to her close personal relationship with the deceased. However, the court dismissed the application because it found that the deceased had made adequate provision for the applicant by including her in the will. The court emphasised that the applicant had not demonstrated that she was left without adequate provision for her maintenance, education, or advancement in life. Consequently, the application was dismissed.

Orders