Garofolo v Capogreco [2006] NSWSC 1116

New South Wales Supreme Court

CITATION : Garofolo v Capogreco [2006] NSWSC 1116 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 23/10/06, 24/10/06

JUDGMENT DATE : 31 October 2006

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraph 56

CATCHWORDS : Family Provision. Application by elderly widow. Whether she should have capital to purchase aged care unit. Order for provision of capital by way of legacy.

PARTIES : Maria Rosaria Garofolo v Joseph Capogreco (Estate of Salvatore Garofolo)

FILE NUMBER(S) : SC 6351/2005

COUNSEL : Mr D Flaherty for plaintiff Ms D Hogan-Doran and Ms P Gormly for defendant

SOLICITORS : Douglas Hannaway for plaintiff` Joseph G Capogreco & Associates for defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Associate Justice Macready

Tuesday 31 October 2006

6351/05 Maria Rosaria Garofolo v Joseph Capogreco (Estate of Salvatore Garofolo) JUDGMENT 1 His Honour: This is a hearing under the Family Provision Act 1982, in respect of the estate of Salvatore Garofolo, who died on 1 August 2004. The deceased was survived by his second wife, the plaintiff, and by his seven children from his first marriage. The last will of the deceased 2 The deceased made his last will on 8 October 1999 and he appointed the defendant, a solicitor, as his executor. In respect of the deceased's house, the will contained a provision that the plaintiff could live in the house and use the household chattels provided she met the outgoings until such time as she ceased her occupation. The plaintiff and deceased's daughters were to receive $5,000 from a debt of $30,000 owed to the deceased. Half of that debt has been recovered and, accordingly, the plaintiff would be entitled to the $2,500. 3 The will provided for the remainder of the estate to be divided equally between the deceased's children, in equal shares, as tenants in common. Assets in the estate of the deceased 4 The main asset in the estate is the house at 3 Hunter Street, Strathfield. There have been a number of estimates of its value and the executor has rejected an offer of $802,000 in an effort to obtain a better price. It seems to me that a likely sale price is the order of $800,000 and the only other asset in the estate is cash amounting to $34,023. The expenses to be incurred are as follows: