Re Estate Luce; Turch v Tripolone [2020] NSWSC 117

Supreme Court New South Wales

Medium Neutral Citation: Re Estate Luce; Turch v Tripolone [2020] NSWSC 117 Hearing dates: 19 and 20 February 2020 Decision date: 28 February 2020 Jurisdiction: Equity - Family Provision List Before: Lindsay J Decision: The plaintiff's application for a family provision order dismissed. Prima facie, costs follow the event. Catchwords: SUCCESSION — Family provision — Intestate estate - Claim by estranged adult son for provision from deceased's estate Legislation Cited: Succession Act 2006 NSW Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Camemik v Reholc [2012] NSWSC 1537. Goodman v Windeyer (1980) 144 CLR 490 In Re Allen [1922] NZLR 218 Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 Sgro v Thompson [2017] NSWCA 326 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 Texts Cited: - Category: Principal judgment Parties: Plaintiff: Robert Guiseppe Turch Defendant: Diana Sandra Tripolone Representation: Counsel: Plaintiff: GA Elliott Defendant: L Hammond

Solicitors: Plaintiff: Paul Denmeade & Co Defendant: Reid Lawyers File Number(s): 2018/00161546

Judgment

INTRODUCTION 1. Antonietta Luca ("the deceased") died intestate on 23 March 2016, aged 73 years. Letters of administration of her estate were granted by this Court to the defendant (her daughter) on 14 May 2018. 2. The persons beneficially entitled to the deceased's estate, under Chapter 4 of the Succession Act 2006 NSW, are her three adult children; namely, the plaintiff (a son), the defendant (his sister) and their sibling, Franco. 3. By a summons filed on 23 May 2018, and amended on 19 December 2019, the plaintiff applies for: (a) an order, pursuant to section 58(2) of the Succession Act 2006, that the time within which he may make an application for family provision relief under Chapter 3 of the Act be extended up to and including the commencement of these proceedings; and (b) an order for family provision under section 59 of the Act. 4. As a child of the deceased, the plaintiff is an "eligible person" (within the meaning of section 57 of the Succession Act) entitled to make an application under Chapter 3 without any need to establish "factors warranting" the making of an application: section 59(1)(a) and (b). 5. During the course of the hearing of the proceedings, the defendant (through her counsel), announced that she consented to an extension of time as sought by the plaintiff, confining her opposition to the plaintiff's claims to opposition to a grant of provision. The focus for attention, then, is on the merits of the plaintiff's application for a family provision order. 6. The amended summons filed by the plaintiff seeks a grant of relief out of "the estate, or notional estate" of the deceased, but no party to the proceedings contends that the notional estate provisions of Chapter 3 of the Succession Act have been engaged. Counsel for the plaintiff disclaimed any claim to "notional estate". 7. All three of the deceased's children gave evidence at the final hearing of the proceedings. All three were cross examined. Franco's evidence was adduced by the defendant in her capacity as administratrix of the deceased's estate. He was not separately represented.