Barca v Ceravolo [2008] NSWSC 698

New South Wales Supreme Court

CITATION : Barca v Ceravolo [2008] NSWSC 698

HEARING DATE(S) : 03/07/08, 09/07/08, 28/07/08, 27/10/08, 27/10/08

JUDGMENT DATE : 19 December 2008

JUDGMENT OF : Macready AsJ at 1

CATCHWORDS : Family Provision. Application by a widow left out of will and her three daughters. Provision made for widow and provision for three daughters increased. - No matter of principle.

PARTIES : Susan Gay Barca & 3 Ors v Teresa Ceravolo

FILE NUMBER(S) : SC 2158/2007

COUNSEL : Mr R. Tregenza for plaintiff Miss R Winfield for defendant

SOLICITORS : Watson Stafford for plaintiff Stormer Lawyers for defendant

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

Associate Justice Macready

Friday 19 December 2008

2158/2007 Susan Gay Barca & ors v Teresa Ceravolo (Estate of the late Vincent Barca) JUDGMENT 1 His Honour: This is an application under the Family Provision Act 1982 in respect of the estate of the late Vincent Barca who died on 27 December 2006 aged 61 years. The first plaintiff, his widow and his three daughters who are also plaintiffs survived him. The last will of the deceased 2 The deceased made his last will on 29 October 2003 in which he appointed the defendant his sister as executrix. He left legacies of $50,000 to each of his daughters and left the residue of his estate to be divided between the defendant and her two daughters, Carmelo Ceravolo and Francesco Ceravolo. He made no provision for his widow from whom he had been separated for many years. He stated in his will that the reason why he had made provision for the residuary beneficiaries was because for the last six years the defendant was the only relative to have cared and regularly visited him. The estate of the deceased 3 The estate of the deceased consisted of his house at Llandilo now valued at $460,000 and cash of $222,406. There is a debt due to the executor of $3,012 which has not been paid. There are also debts due to the deceased's sister Maria Pedri of $45,000 which although statute barred are likely to be honoured by the defendant and thus should be taken into account. There is also an extraordinary claim by the executor for travelling expenses of $15,660 and lawn mowing and feeding the deceased's dogs of $22,000. There are the defendant's costs which are estimated at $41,520. The plaintiffs 'costs are estimated at $46,499. If all these claims are met the net estate will be $508,717 less selling costs of the property. Family history 4 The deceased was born in May 1945 and the first plaintiff Susan was born in November 1951. They first met in 1966 when the Susan was 14 years old and the deceased was 21 years old. 5 Susan started work as a machinist in 1967. The deceased and Susan married in January 1975. At the time Susanne was employed as a machinist the deceased worked for the Department of Main Roads as a labourer. They lived in a property in Terrybrook road Llandilo which was owned by the deceased and on which he had built a house. 6 Their first child Anne was born in September 1975 and their second child Christie was born in October 1977. The plaintiff had a difficult relationship with the deceased and separated from the deceased while pregnant with Christie but returned to live with him before Christie was born. 7 In about late 1979 the plaintiff finally separated from the deceased. Her third daughter Kelly was born in February 1980. The deceased paid maintenance for the children until Anne turned 16 in 1991. They lived with their mother as they grew up at her parent's home and other places. 8 In due course the children married and have started their own families. I will deal later with the extent of contact they had with their father. 9 As I have mentioned the deceased made his will on 29 October 2003 and died on 27 December 2006. Probate was granted and these proceedings commenced within time. Eligibility 10 All the plaintiffs are eligible persons. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a court must take. At page 209 it said the following:- "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."