Handley v Cipollone [2002] NSWSC 347

Handley v Cipollone [2002] NSWSC 347

The plaintiff had demonstrated a strong case for further provision because, despite owning a home, she was aged fifty-one, had modest income with her partner, faced a mortgage of about $290,000 requiring repayments of about fifty to sixty per cent of their combined income, and the breakdown in her relationship with the deceased was the deceased's fault. The grandchildren had a claim as beneficiaries, but the evidence indicated their parents were able to support them. In the circumstances of a small estate burdened by substantial costs, the will should be altered by giving each granddaughter a small legacy and the residue to the plaintiff.

Jurisdiction
Australia
Judgment Date
18 April 2002
Procedural Posture
Application Under the Family Provision Act in Respect of a Deceased Estate / Judgment and Orders After Hearing
Outcome
Application allowed; provision made for the plaintiff by altering the will provisions.
Legal Topics
['adequate Provision for Proper Maintenance, Education and Advancement in Life' "daughter's Claim Against Deceased Estate" 'competing Claims of Grandchildren Beneficiaries' 'costs Payable From Estate']
['succession' 'family Provision'] ['adequate Provision for Proper Maintenance, Education and Advancement in Life' "daughter's Claim Against Deceased Estate" 'competing Claims of Grandchildren Beneficiaries' 'costs Payable From Estate']

Case Brief

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Procedural Posture

Application Under the Family Provision Act in Respect of a Deceased Estate / Judgment and Orders After Hearing

Legal Issues

  1. 1 ["Whether the deceased's will left the plaintiff without adequate provision for her proper maintenance, education and advancement in life." "What provision, if any, should be made for the plaintiff from the deceased's small estate." "How the interests of the two grandchildren named as beneficiaries under the will should be balanced against the plaintiff's claim."]

Ratio Decidendi

The plaintiff had demonstrated a strong case for further provision because, despite owning a home, she was aged fifty-one, had modest income with her partner, faced a mortgage of about $290,000 requiring repayments of about fifty to sixty per cent of their combined income, and the breakdown in her relationship with the deceased was the deceased's fault. The grandchildren had a claim as beneficiaries, but the evidence indicated their parents were able to support them. In the circumstances of a small estate burdened by substantial costs, the will should be altered by giving each granddaughter a small legacy and the residue to the plaintiff.

Court Disposition

Application allowed; provision made for the plaintiff by altering the will provisions.

Orders

  • ['In lieu of the provision in clauses 2.3 and 3 of the will, Marisa Rose Cervoni is to receive a legacy of $5,000.' 'In lieu of the provision in clauses 2.3 and 3 of the will, Leah Maree Cervoni is to receive a legacy of $5,000.' 'The residue of the estate is to be held for the plaintiff.' "The plaintiff's costs are...