Legal Research
Cases
Romano v Romano

Romano v Romano

Case [2004] NSWSC 775 26 August 2004

No judgment structure available for this case.

Type to search within this case.

CITATION: Romano v Romano; Estate of Giacomo Romano [2004] NSWSC 775

HEARING DATE(S): 13/08/04

JUDGMENT DATE:
26 August 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Order for separate determination of question. Order for interim distribution.

CATCHWORDS: SUCCESSION - executors and administrators - administration - application for interim distribution - estate not fully administered - assets nevertheless clearly sufficient to allow payment of pecuniary legacy

LEGISLATION CITED: Supreme Court Rules, Part 31, Part 68 rule 2(3)(d) or (4)(b)
Wills Probate and Administration Act 1898, ss.29, 84

CASES CITED: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Barns v Barns (2003) 214 CLR 169
Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694
Gonzales v Claridades (2003) 58 NSWLR 211
In the will of Clinton (1910) 10 SR (NSW) 465
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306
Re Anderson (1953) 53 SR(NSW) 520
Romano v Romano [2003] NSWSC 436
Romano v Romano [2004] NSWCA 37
Stokes v Churchill; Estate of Fryer (unreported, NSWSC, Santow J, 16 December 1993)

PARTIES :
Louise Romano - Plaintiff
Edward Romano - Defendant

FILE NUMBER(S): SC 3450/04

COUNSEL: Mr L J Ellison - Plaintiff
Mr J R Wilson SC - Defendant

SOLICITORS: John Fisicaro & Co - Plaintiff
Michie, Shehadie & Co - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

THURSDAY, 26 AUGUST 2004

3450/04 – LOUISE ROMANO v EDWARD ROMANO

JUDGMENT

1 Giacomo Giuseppe Romano (“the deceased”) died on 2 June 2001 aged 87 years. After a hearing before Bryson J, probate of the deceased’s will and a codicil to it was, on 30 May 2003, granted to his son, Edward Romano (“Edward”), the present defendant. The court pronounced against an additional document propounded by Edward: Romano v Romano [2003] NSWSC 436. The latter aspect of Bryson J’s decision became the subject of an appeal which was dismissed by the Court of Appeal on 27 February 2004: Romano v Romano [2004] NSWCA 37.

2 At the time of making his will on 6 December 1988, the deceased had two children, Edward and another son, John Romano (“John”). John died in 1995 leaving a widow and two daughters. One of the daughters, the present plaintiff, was named as executrix in John’s will which was admitted to probate on 27 August 1996. By that will, the whole of John’s estate was given to his widow, Jeanette Romano (“Jeanette”).

3 John is named as a beneficiary in the will of the deceased. A relevant part of the will is as follows:

I GIVE DEVISE AND BEQUEATH

JOHN

TWO HUNDRED THOUSAND DOLLARS

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 Romano v Romano

Details

AGLC: Romano v Romano [2004] NSWSC 775
Case: [2004] NSWSC 775
Decision Date: 26 August 2004

CaseChat Overview and Summary

In the case of Romano v Romano, the court dealt with a matter concerning the distribution of an estate where the executors had not fully administered the estate but sought an interim distribution. The dispute involved the estate of a deceased person and the rights of beneficiaries to receive their pecuniary legacies. The court was required to determine whether it was appropriate to make an interim distribution of the estate despite the fact that it had not been fully administered, given that there were clearly sufficient assets to allow for the payment of the pecuniary legacy in question.

The central legal issue before the court was whether the executors could apply for an interim distribution of the estate, even though the estate had not been fully administered, and if so, under what conditions. The court needed to consider the balance between the rights of the beneficiaries to receive their legacies promptly and the executors' obligation to administer the estate thoroughly. It had to weigh the need for an orderly and complete administration against the urgency of the beneficiaries' claims.

The court held that the executors could apply for an interim distribution if the assets were clearly sufficient to meet the pecuniary legacy. It reasoned that while full administration of an estate is generally required before distribution, there are circumstances where an interim distribution may be appropriate. In this case, the court found that the estate's assets were indeed sufficient to cover the pecuniary legacy without affecting the ultimate rights of the beneficiaries or the executors' duties. Therefore, the court allowed the application for interim distribution, emphasising the importance of considering the specific circumstances of each estate and the potential impact on the beneficiaries.

The final orders of the court included granting the executors permission to make an interim distribution of the estate in favour of the beneficiary claiming the pecuniary legacy. The court also directed the executors to continue with the administration of the estate and to provide regular updates to the court regarding the progress.

Orders