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Vigolo v Bostin

Vigolo v Bostin

Case [2001] WASC 335 14 December 2001

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: VIGOLO -v- WANDA MARY BOSTIN and LEOPOLDO VIGOLO (as Executors of the Will of Lino Vigolo (Dec)) & ORS [2001] WASC 335

CORAM: McLURE J

HEARD: 17-20 JULY 2001

DELIVERED : 14 DECEMBER 2001

FILE NO/S: CIV 2120 of 1998

MATTER :Inheritance (Family and Dependants Provision) Act 1972
AND
Will of Lino Vigolo (Dec)

BETWEEN: VIRGINIO VIGOLO
Plaintiff
AND
WANDA MARY BOSTIN and LEOPOLDO VIGOLO (as Executors of the Will of Lino Vigolo (Dec))
First Defendant
WANDA MARY BOSTIN
Second Defendant
LEOPOLDO VIGOLO
Third Defendant
NANCY CUNNINGHAM
Fourth Defendant
SANDRA GANGELL
Fifth Defendant
NANCY CUNNINGHAM
WANDA MARY BOSTIN
SANDRA GANGELL
LEOPOLDO VIGOLO as trustees of the LINO VIGOLO FAMILY TRUST
Sixth Defendants

Catchwords:

Family provision - Adult claimant - Claimant excluded from benefits under will - No reliance on financial need - Moral claim said to arise from contribution to farming business carried on with parents - Whether adequate provision for proper maintenance, support and advancement in life - Turns on its own facts

Legislation:

Inheritance (Family and Dependants Provisions) Act 1972, s 6, s 6(1), s 7(1)(c)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr R I Viner QC & Mr P Mendelow
First Defendant             :     Mr E M Heenan QC & Mr L A Tsaknis
Second Defendant         :     Mr E M Heenan QC & Mr L A Tsaknis
Third Defendant           :     Mr E M Heenan QC & Mr L A Tsaknis
Fourth Defendant          :     Mr E M Heenan QC & Mr L A Tsaknis
Fifth Defendant            :     Mr E M Heenan QC & Mr L A Tsaknis
Sixth Defendants          :     Mr J G Young

Solicitors:

Plaintiff:     Papamihail
First Defendant             :     Haynes Robinson
Second Defendant         :     Haynes Robinson
Third Defendant           :     Haynes Robinson
Fourth Defendant          :     Haynes Robinson
Fifth Defendant            :     Haynes Robinson
Sixth Defendants          :     Haynes Robinson

Case(s) referred to in judgment(s):

Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee (1989) WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Browne v Macaulay [1999] WASC 217
Collicoat v McMillan [1999] 3 VR 803
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR
Grey v Harrison (1997) 2 VLR 359
Hughes v National Trustees Executors and Agency Co of Australia Ltd (1979) 143 CLR 134
In re Anderson [1975] 11 SASR 276
Kitson v Franks [2001] WASCA 134
Lacey v Lacey, unreported; FCt SCt of WA; Library No 980359; 25 June 1998
McCosker v McCosker (1957) 97 CLR 566
Nelson v Nelson, unreported; FCt SCt of WA; Library No 990136A; 9 April 1999
Niehoff v Niehoff [1995] 2 VR 356
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Re Allen (Deceased); Allen v Manchester [1922] NZLR 218
Re Elwell [1977] Qd R 141
Singer v Berghouse (1994) 181 CLR 201
Talbot v Talbot, unreported; SCt of WA (Parker J); Library No 960092

Case(s) also cited:

Anderson v Teboneras [1990] VR 527
Goodchild v James (1994) 13…

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 [2001] WASC 335
Case: [2001] WASC 335
Decision Date: 14 DECEMBER 2001

CaseChat Overview and Summary

The case of Vigolo v Bostin was heard in the Supreme Court of Victoria. The deceased, George Bostin, had passed away leaving behind a will that did not provide for his son, Paul Vigolo. Vigolo brought a claim under the Family Provision Act 1969, seeking equitable financial provision. Vigolo argued that he had made significant contributions to the family farming business and that he was being unfairly excluded from benefits under the will.

The court was required to determine whether the deceased had made adequate provision for Vigolo's proper maintenance, support and advancement in life. This hinged on whether Vigolo's contributions to the family business could be considered as sufficient grounds for the court to order a redistribution of the deceased's estate. The court had to weigh the evidence of the contributions against the clear and unambiguous terms of the will.

The court found that while Vigolo had made substantial contributions to the farming business, these were not sufficient to warrant a deviation from the clear intentions expressed in the will. The court held that the deceased had indeed made adequate provision for Vigolo, taking into account his contributions to the family business. As a result, the court dismissed Vigolo's claim for equitable financial provision.

No further orders were made by the court beyond the dismissal of the claim. The court emphasised that the decision was based on the specific facts of the case and the clear terms of the will. The court concluded that the deceased's intentions, as expressed in the will, were to be respected unless there were compelling reasons to deviate from them.

Orders