Vigolo v Bostin [2005] HCA 11

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, HAYNE, CALLINAN AND HEYDON JJ

VIRGINIO VIGOLO APPELLANT

AND

WANDA MARY BOSTIN & LEOPOLDO RESPONDENTS

VIGOLO (AS EXECUTORS OF THE WILL OF

LINO VIGOLO DECEASED) & ORS

Vigolo v Bostin [2005] HCA 11

9 March 2005

P30/2004

ORDER

1. Appeal dismissed.

1. The appellant pay the costs of the respondents as between party and party. 2. The costs of the appeal of the first and second respondents be taxed on the trustee basis and, to the extent that those costs exceed the costs borne and paid by the appellant as between party and party, be paid out of the estate.

On appeal from the Supreme Court of Western Australia

Representation:

R I Viner QC with P Mendelow for the appellant (instructed by SS Chohaan)

M J Buss QC with L A Tsaknis for the respondents (instructed by Hudson Henning & Goodman)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Vigolo v Bostin

Testator's family maintenance – Adequate provision for proper maintenance – Application by son of deceased – From 1973 to 1993 appellant made substantial contribution to deceased's family farming business – Deceased promised appellant that he would inherit family farm in return for his work in building up family assets – In 1993 relationship between appellant and deceased broke down – As a consequence parties entered Deed of Settlement to rearrange family affairs including ownership of family farm, which was purchased by the appellant and his wife – Deceased's will made no provision for the appellant – Jurisdictional question – Whether appellant left without adequate provision for his maintenance, education or advancement in life – Effect of Deed of Settlement on totality of relationship – Relevance of moral duty criterion.