JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: VIGOLO -v- WANDA MARY BOSTIN and LEOPOLDO VIGOLO (as Executors of the Will of LINO VIGOLO (DEC)) & ORS [2002] WASCA 327
CORAM: STEYTLER J
PARKER J
SHEPPARD AUJ
HEARD: 4 OCTOBER 2002
DELIVERED : 4 DECEMBER 2002
FILE NO/S: FUL 11 of 2002
BETWEEN: VIRGINIO VIGOLO
Appellant
AND
WANDA MARY BOSTIN and LEOPOLDO VIGOLO (as Executors of the Will of LINO VIGOLO (DEC))
First RespondentsWANDA MARY BOSTIN
Second RespondentLEOPOLDO VIGOLO
Third RespondentNANCY CUNNINGHAM
Fourth RespondentSANDRA GANGELL
Fifth Respondent
Catchwords:
Testator's family maintenance - Application - Moral claim - Appellant one of five children of testator - Profited from business association with testator during testator's life - Appellant excluded from any benefit under will - Appellant financially secure at time of testator's death - Unable to demonstrate that he had been left without adequate provision or that the deceased ought to have made such provision for him - Inheritance (Family and Dependants Provisions) Act 1972, s 6
Legislation:
Inheritance (Family and Dependants Provisions) Act 1972 (WA), s 6
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr R I Viner QC & Mr P Mendelow
First Respondents : Mr M J Buss QC & Mr L A Tsaknis
Second Respondent : Mr M J Buss QC & Mr L A Tsaknis
Third Respondent : Mr M J Buss QC & Mr L A Tsaknis
Fourth Respondent : Mr M J Buss QC & Mr L A Tsaknis
Fifth Respondent : Mr M J Buss QC & Mr L A Tsaknis
Solicitors:
Appellant: S S Chohaan
First Respondents : Haynes Robinson
Second Respondent : Haynes Robinson
Third Respondent : Haynes Robinson
Fourth Respondent : Haynes Robinson
Fifth Respondent : Haynes Robinson
Case(s) referred to in judgment(s):
Anasson v Phillips, unreported; SCt of NSW (Young J); Library No BC8802473; 4 March 1988
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494
Collicoat v McMillan [1999] 3 VR 803
Hawkins v Prestage (1989) 1 WAR 37
In re Allen [1922] NZLR 218
In re Sinnott [1948] VLR 279
Kitson v Franks [2001] WASCA 134
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Singer v Berghouse (1994) 181 CLR 201
Talbot v Talbot, unreported; SCt of WA (Parker J); Library No 960092; 22 February 1996
Case(s) also cited:
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Goodchild v James (1994) 13 WAR 229
Goodman v Windeyer (1980) 144 CLR 490
Grey v Harrison [1997] 2 VR 359
House v The King (1936) 55 CLR 499
Lacey v Lacey, unreported; FCt SCt of WA; Library No 980359; 25 June 1998
Marks v William [2002] WASC 197
Nelson v Nelson, unreported; FCt SCt of WA; Library No 990136; 9 April 1999
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- Vigolo v Bostin [2002] WASCA 327
- Case
- [2002] WASCA 327
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the appellant had been left without adequate provision for and whether the deceased ought to have made such provision for him. The court had to consider the relevant statutory provisions and whether the appellant met the criteria for making a claim under the Act. Additionally, the court needed to assess whether the appellant's financial status at the time of the testator's death impacted his entitlement to a claim under the Act.
The court held that the appellant had not been left without adequate provision for, as he was financially secure at the time of the testator's death. The court found that the appellant had not demonstrated that he required financial support from the deceased or that the deceased should have made provision for him. The court relied on the statutory provisions of the Inheritance (Family and Dependants Provisions) Act 1972, section 6, which sets out the criteria for making a claim. The court determined that the appellant did not meet these criteria and dismissed the appellant's claim. The court emphasised that the Act is not intended to override the testator's wishes as expressed in the will, and that the appellant's business relationship with the testator did not entitle him to a share of the estate.
The court ordered that the appellant's claim be dismissed, and that the estate be distributed according to the terms of the will. The court's decision reinforces the principle that the Act is not intended to provide a safety net for those who have been financially independent during the testator's life, and that the testator's wishes as expressed in the will should be respected.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: PARKER J
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