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Vigolo v Bostin

Vigolo v Bostin

Case [2002] WASCA 327 4 December 2002

Inheritance (Family and Dependants Provisions) Act 1972, s 6

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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 Respondents
WANDA MARY BOSTIN
Second Respondent
LEOPOLDO VIGOLO
Third Respondent
NANCY CUNNINGHAM
Fourth Respondent
SANDRA 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

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 Vigolo v Bostin

Details

AGLC: Vigolo v Bostin [2002] WASCA 327
Case: [2002] WASCA 327
Decision Date: 4 DECEMBER 2002

CaseChat Overview and Summary

The case of Vigolo v Bostin involved a dispute between a testator's family members regarding the distribution of the estate. The appellant, one of five children of the deceased, sought a portion of the estate under the provisions of the Inheritance (Family and Dependants Provisions) Act 1972. The appellant had been involved in a business association with the testator during the testator's life and had profited from this relationship. Despite this, the appellant was excluded from receiving any benefits under the will. The appellant argued that the testator should have made provisions for him, despite his financial security at the time of the testator's death.

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