Toscano v Toscano [2017] NSWSC 419

Toscano v Toscano [2017] NSWSC 419

Adequate provision was not made for Victor Toscano; proper amount is $180,000, with costs on ordinary basis. The Oatley property and Anthony's share from the Ryde property (as designated notional estate) are available to fund these orders, as the deceased's intention in property transfers satisfied the statutory requirements. Estoppel and abuse of process arguments do not prevent defendants from contesting status, but evidence and intention support designation to fulfil Victor's entitlement.

Jurisdiction
Australia
Judgment Date
20 April 2017
Procedural Posture
Family Provision Application / Post Judgment, Awaiting Final Orders
Outcome
Plaintiff (Victor Toscano) is entitled to a family provision order; parties directed to bring in short minutes of order to give effect to the reasons for judgment.
Legal Topics
['family Provision' 'notional Estate' 'issue Estoppel' 'abuse of Process' 'consent Orders' 'adequate Provision' 'estranged Adult Child' 'burden of Proof' 'designation of Notional Estate']
['succession Law' 'equity'] ['family Provision' 'notional Estate' 'issue Estoppel' 'abuse of Process' 'consent Orders' 'adequate Provision' 'estranged Adult Child' 'burden of Proof' 'designation of Notional Estate']

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Procedural Posture

Family Provision Application / Post Judgment, Awaiting Final Orders

Legal Issues

  1. 1 ["Whether adequate provision has been made for the plaintiff's proper maintenance and advancement in life" 'Whether transferred property should be designated as notional estate to meet provision' 'Whether defendants are estopped or abusing process by denying property is notional estate after earlier consent orders']

Ratio Decidendi

Adequate provision was not made for Victor Toscano; proper amount is $180,000, with costs on ordinary basis. The Oatley property and Anthony's share from the Ryde property (as designated notional estate) are available to fund these orders, as the deceased's intention in property transfers satisfied the statutory requirements. Estoppel and abuse of process arguments do not prevent defendants from contesting status, but evidence and intention support designation to fulfil Victor's entitlement.

Court Disposition

Plaintiff (Victor Toscano) is entitled to a family provision order; parties directed to bring in short minutes of order to give effect to the reasons for judgment.

Orders

  • ['Pecuniary legacy of $180,000 to Victor Toscano' "Victor's costs on ordinary basis to be paid equally by Anthony and Katrina from designated notional estate" "Oatley property and Anthony's proceeds from Ryde property designated as notional estate to fund orders"]