Girotto v Girotto

These proceedings concern the estate of the late Bertilla Girotto, who died on 18 November 2022 at the age of 90. She made her last will a few days earlier, on 7 November 2022. Bertilla’s husband, Luigi, predeceased her in 1997.

Bertilla and Luigi had two sons: the plaintiff, Maurisio, who is 63, and the defendant, Emanuel Dante, who is 59. There is now no love lost between the two brothers. Without intending any disrespect, the Court will refer to the members of the Girotto family by their given names.

There was no dispute that Dante’s moral claim on Bertilla’s testamentary bounty was greater than Maurisio’s. Bertilla left her estate to Dante, with the exception of a specific legacy of $300,000 to Maurisio. By an amended summons dated 12 May 2025 Maurisio seeks an order for further provision from the estate pursuant to s 59 of the Succession Act 2006 (NSW). There was no dispute that Maurisio is an eligible person under the Act.

Bertilla could have left more than the legacy to Maurisio while still making proper provision for Dante. She chose not to do so for reasons which she made abundantly clear in extensive notes made in circumstances where her clarity of mind cannot be seriously doubted. The questions in this case are whether the legacy was not adequate provision for Maurisio (s 59(1)(b) of the Act) and, if not, what order for provision should be made (s 59(2) of the Act).

For the reasons which follow, the Court is not satisfied that the legacy was not adequate provision for Maurisio. In summary, this is because the legacy meets Maurisio’s demonstrated need for an amount to supplement his superannuation and provide a buffer against contingencies. However, if this conclusion be wrong, the Court would still not exercise its discretion to order further provision primarily because it is satisfied that Bertilla’s testamentary intentions should be respected.

Ms L Sewell of Counsel appeared for Maurisio. Mr L Ellison SC appeared for Dante.

By her will, Bertilla appointed Dante as the sole executor of her estate. He has obtained a grant of probate. Maurisio was left the legacy of $300,000. The residue of the estate was left in its entirety to Dante. The will included a contingency provision whereby if Dante predeceased her, Dante’s portion of the estate would go to his children, and if there be no children, it would be divided between his wife, and Bertilla’s sister in Italy. At the time of Bertilla’s death, Dante had neither a wife nor children.

The majority of the estate comprised of two adjoining properties in Bossley Park, one valued at $1,400,000 and the other valued at $900,000. One of these properties was where Bertilla had lived with Dante for his entire life. There was also a bank account of $5,260.81. The combined value of the estate was $2,305,260.81.

There was also available notional estate: a further bank account which Bertilla held as joint tenant with Dante, which contained $301,029.16; and $1,080,000 being the proceeds of a sale on 20 April 2022 of a third adjoining property at Bossley Park. These amounts brought the value of the estate to a gross amount of $3.6 million dollars.

When asked in cross-examination about the reasons for bringing the claim, Maurisio initially stated that he wanted “some answers” (Tcpt, 19 May 2025, p 56(33)). The answers to what was not made clear. When pressed, he then stated he wanted “his share” of the estate in an amount that would be “fair”. This was eventually stated to be 50% of the estate, including the proceeds of the sale of the third property (Tcpt, 19 May 2025, p 57(14)).

Maurisio’s evidence included details of several properties which he had provided to his solicitors as examples of properties he would like to buy. Each property was on acreage and valued at $2,000,000 or more. One such property was advertised as available for offers above $3,500,000 and was a 15.25 hectare property with a seven bedroom dwelling. Another property was advertised as between $2,750,000 and $2,900,000 and had a five bedroom house. Maurisio accepted in cross-examination that these properties were not what he needed. Particularly, he accepted that he did not require either five or seven bedrooms, and that he has not been taking steps to maintain his current home or property for 20 years (Tcpt, 19 May 2025, p 59(12)).

During the course of address, Ms Sewell handed up a document which was titled ‘Wish List’:

Ultimately only the items set out above in italics were pressed.

Maurisio is a 63 year old widower with one adult son, Aaron. Maurisio is a qualified heavy vehicle mechanic and is a director of both Bulk Haulage Australia Pty Ltd and BHA Muller Pty Ltd. His evidence was that his monthly business turnover is $40,000. For the 2022 financial year Maurisio’s taxable income was $155,000 and $197,688 for the 2023 financial year. Maurisio has $256,628 in superannuation and $108,500 in the bank. He also has several vehicles, valued at approximately $127,000.

In cross-examination, Maurisio agreed that he owns the block of land on which he lives (Tcpt, 19 May 2025, p 45(21)). Maurisio tendered an appraisal of between $1,000,000 and $1,100,000 as the value of his property. A valuation of that land was tendered on behalf of Dante that the market value was $1,950,000. Maurisio accepted in cross-examination that this amount was what his property might sell for (Tcpt, 19 May 2025, p 55(50)). Maurisio gave evidence that no significant money had been spent on the property, including fencing and guttering, for nearly 20 years, because of his as yet unfulfilled hope that the property would be bought by a developer (Tcpt, 19 May 2025, p 55(36)). The Court finds that the current market value of Maurisio’s property is $1,950,000.

There is a mobile home on the property, which was bought for $27,500. There is no evidence as to the current value of the mobile home. The ownership of this mobile home is unclear. Maurisio’s evidence under cross-examination was that the mobile home was purchased by his son, Aaron (Tcpt, 19 May 2025, p 51(44)). While Aaron never lived in the mobile home, Maurisio’s evidence was that he could have it back if he ever asked for it (Tcpt, 19 May 2025, p 52(2)). This is despite it requiring a crane to be moved (Tcpt, 19 May 2025, p 51(16)) and it being connected to water, electricity and sewage (Tcpt, 19 May 2025, p 77(5)). However, in his affidavit dated 2 May 2025, Maurisio deposes that his late wife, Lauren, paid Aaron part of the initial purchase price and later paid him the balance. As Maurisio was the executor and beneficiary of her estate, to the extent it is relevant the Court concludes that the mobile home is an asset of Maurisio, whether it be a fixture or a chattel.

Maurisio’s friend Arthur Stewart lives in the mobile home, while Maurisio’s stepson John Morrison lives with him in the main dwelling. Although neither pays rent to Maurisio, each of them does some general gardening and property maintenance.

Maurisio deposed that he had debts totalling $300,000, and that his monthly expenses are $16,568. Ms Sewell accepted this was not a case where Maurisio is currently unable to meet his ordinary living expenses or other financial obligations.

Maurisio has atrial fibrillation and had a heart attack in April 2022. He has an enlarged prostate and suffers from vertigo. Maurisio has some degree of degenerative back disease that includes a L4 to L5 disc protrusion with disc degeneration. He also asserted that he will require bilateral knee replacement surgery in the future.

Dante’s circumstances were not put in issue in answer to Maurisio’s claim. However, it is necessary to say something about them to understand why Bertilla left all but the legacy to Dante. Dante is 60 years old and has never married or had children. He has lived his entire life at one of the properties with his parents and continues to reside there. Dante has a heavy vehicle license, but no other formal qualifications (Tcpt, 20 May 2025, p 113(15)). He had worked as a truck driver in a business with Maurisio until the breakdown of their relationship.

Dante gave evidence that he lives off the interest earned on the $300,000 that he shared with Bertilla as joint tenants, because he does not have a job or other source of income (Tcpt, 20 May 2025, p 110(31)). He further gave evidence that he has no superannuation (Tcpt, 20 May 2025, p 113(29)).

Maurisio’s propensity to anger was an issue in the proceedings. He was cross-examined. He presented in the witness box as calm and reasonable, but unnaturally or exaggeratedly so. Maurisio rejected Mr Ellison SC’s suggestion that he had a short fuse (Tcpt, 19 May 2025, p 65(23)). However, my impression of him, fortified by his diary entries (see [34]-[36], [41]-[42] and [50] below), is that he is a man with a short fuse who was doing his best to present otherwise. It was unconvincing. More generally, Maurisio presented as a witness who was reluctant to say or accept anything that might be contrary to his interests. The Court would not prefer his evidence to Dante’s evidence or Bertilla’s notes (see [53], [56]-[57] below), unless the evidence was against Maurisio’s interest or corroborated independently.

Dante was also cross-examined. At various point in his evidence, he became angry and emotional. He did not attempt to disguise the anger and frustration he felt towards his brother over how he perceived Maurisio had treated him. However, that emotion struck me as entirely genuine and I formed the view that Dante was an honest witness, who was doing his best to tell the truth, irrespective of its consequences in the case. The Court accepts his evidence.

The Court had the advantage of more independent evidence about Bertilla than is often the case in relation to testators in family provision matters. The evidence is relevant because an important part of Maurisio’s case was that Dante had somehow persuaded Bertilla that Maurisio was the one at fault for the falling out between the brothers. Dante said of Bertilla that she was “an independent woman” (Tcpt, 20 May 2025, p 100(12) and Tcpt, 20 May 2025, p 128(27)) and that he did not have to express anything to her, as she “had eyes for herself” (Tcpt, 20 May 2025, p 126(40)). The Court accepts this characterisation of Bertilla up to and including when she made the will by reason of the:

A video was tendered which was recorded by the police on 28 February 2021 when taking a statement from Bertilla (with Dante present) at her home after an incident when Maurisio (to put it neutrally) sought to gain admittance to the house at a time when Bertilla and Dante were inside. The recording runs for approximately 30 minutes. Bertilla was giving her responses in Italian through an interpreter who was on the police officer’s phone. Even to someone who did not speak Italian it would have been apparent from her manner and demeanour that Bertilla was alert and intelligent in her responses. Her answers, as interpreted, were consistent with that conclusion.

Several documents were tendered which were handwritten by Bertilla in Italian. This included a seven page note dated 25 May 2022, and two handwritten notes dated 6 November 2022 (the day before she made the will) which all explained her reasons for dividing the estate as she did. Extracts are set out in [53] and [56] to [57] below. There was also a two page handwritten document which provided answers to questions Bertilla was asked by her solicitors about the estate. Quite apart from the quality or sophistication of their content, the notes were written in a clear and strong hand, belying her age.

The Court had the benefit of evidence from both Bertilla’s solicitor Mr Vince Galluzzo and an interpreter, Mr Tony Cavallero. Mr Galluzzo gave evidence that despite not being able to read Italian fluently, “all I could tell with the notes was that her writing was magnificent” (Tcpt, 19 May 2025, p 19(49)). When asked about how she spoke, Mr Galluzzo gave the following evidence:

Mr Galluzzo also stated in his evidence that Mr Cavallero commented to him when Bertilla attended Mr Galluzzo’s office “how good her writing was and how she was aware of everything that was going on” (Tcpt, 19 May 2025, p 39(23)).

Mr Cavallero gave the following evidence about when he took Bertilla through her statutory declaration (see [57] below) on 7 November 2022:

In a statutory declaration dated 23 December 2022, Mr Cavallero stated:

Both Mr Galluzzo and Mr Cavallero gave evidence in relation to the making of the will that Bertilla requested additional time to sit and write out her notes in Mr Galluzzo’s conference room, and that they found Bertilla to be coherent in her responses to questions.

Bertilla was born in 1932 and immigrated to Australia from Italy in 1959 with Luigi. They bought seven acres of land in Bossley Park in 1961, which is where Dante lived with his parents and then Bertilla until her death. Italian was the language spoken in the home, with Bertilla not being fluent in English. Maurisio was born in 1961, and Dante was born in 1965. Luigi died in 1997.

It was common ground that the two brothers had been in business together, and that their relationship is no longer a good one, although there were differing versions about the origins and depth of the conflict between them. The brothers commenced a partnership in 1993 known as Transdan Haulage. It is undisputed that Dante contributed significant funds towards this partnership and drove a truck. Maurisio conceded in cross-examination that Dante is still owed money by the partnership and that he currently has no realistic prospect of receiving that money (Tcpt, 19 May 2025, p 49(29-36)).

Maurisio kept a handwritten diary, from which various entries were tendered in evidence. On 17 November 2001, he wrote, “BIG BLOW UP WITH DAN – HE WANTS $100,000.00 – OFFERED $40,000.00”. Dante deposed that on this date, he asked for the money that he had paid into the partnership to be repaid. In response, Maurisio slapped him across the face and swore at him in front of Bertilla. In his evidence, Maurisio agreed that there was a verbal argument that involved yelling, however, he denied any physical interaction took place (Tcpt, 19 May 2025, p 65(35)). Maurisio also denied that Bertilla was present. Consistently with the Court’s findings as to credit (see [22] and [23] above), the Court accepts Dante’s version of events.

On 18 January 2004, Maurisio wrote in his diary, “TOOK DAN’S BELONGINGS (TOOLS) TO MUMS – DAN FINALLY SHOWED UP – PHYSICAL CONFRONTATION – LAUREN WENT BACK TO CHECK ON MUM”. Dante deposed that on this date, Maurisio grabbed, punched and pushed him in the presence of Bertilla. Maurisio accepted in cross-examination that there was a physical altercation between himself and Dante on this date, but claimed it was the only physical altercation they had (Tcpt, 19 May 2025, p 64(16)). Maurisio gave evidence that the altercation began as a verbal one. However, Dante began waving his arms around, and Maurisio defended himself. It was agreed that Bertilla was distressed by witnessing the altercation. The Court again accepts Dante’s version of these events and Maurisio’s concessions that are consistent with Dante’s evidence. Maurisio’s evidence is otherwise rejected.

On 8 March 2011, Maurisio wrote “ASKED DAN SOME QUESTIONS ABOUT A JOB CARD AND HE BUNGED ON HIS SHIT. SAID HE WILL GO HOME AND I TOLD HIM IF HE GOES HOME – STAY HOME.” Dante deposed that on this date, he was working in the workshop when Maurisio stormed in and began yelling at him about wages. Dante claims that Maurisio punched him, spat at him, pushed him to the ground, kicked him and used his foot to prevent him from standing up. In cross-examination, Maurisio denied that there was any physical altercation, but did concede that he would have had a raised voice when talking with Dante (Tcpt, 19 May 2025, p 68(8)). The Court accepts Dante’s evidence of this incident and that Maurisio said the words recorded in his diary.

Dante deposed that towards the end of 2011, he arrived home at around 9pm and when he stepped out of the car, Maurisio attacked him from behind. Maurisio pushed him to the ground and then followed him inside the house, kicking and punching him. When Bertilla tried to intervene, Maurisio pushed her away and continued to punch the back of Dante’s head until he was unconscious. Maurisio denied that this altercation occurred (Tcpt, 19 May 2025, p 70(24)). The Court accepts Dante’s evidence. It is corroborated by Bertilla’s note set out in [53] below. In doing so, I have not overlooked that Dante accepted in cross-examination about this and other occasions of violence that neither the police nor an ambulance was called. However, I accept Dante’s explanation that Bertilla did not want the authorities involved because of her concern that it would bring public shame on the family. This is consistent with her answer to Question 2 of the statutory declaration set out in [57] below.

In September 2012, Dante suffered an aneurysm. Both Dante and Bertilla came to attribute this to the incident at the end of 2011 described in the preceding paragraph.

Dante deposed that on 4 October 2016, he tried to speak with Maurisio about selling one of the trucks which was parked at Bertilla’s house. Maurisio attended the home, pushed him and slapped him. Maurisio denied that this altercation occurred (Tcpt, 19 May 2025, p 70(35)). Text messages from Maurisio to Dante on this date read as follows:

Dante evidence was that following this incident, he did not have contact with his brother until January 2021.

Maurisio wrote in his diary on 16 December 2016: “MY MOTHER FINALLY RANG. OBVIOUS WHAT HER THOUGHTS ARE. I AM NOT PAYING DAN OUT HIS DEBT AND A TRUCK – GET FUCKED”. During the course of his evidence, Maurisio stated Bertilla called him, saying Dante was upset and she asked him to pay Dante out for the money he had put into the partnership and give him one of the trucks. Maurisio refused. Following this conversation, there was no contact between Maurisio and Bertilla until 2021.

On 30 December 2016, Maurisio wrote “AARON INFORMED LAUREN [Maurisio’s wife] THAT THE GIFT SHE SENT WAS REFUSED BY DICKHEAD DAN”.

On 18 September 2018, Bertilla made a will. This will appointed Dante as executor and trustee, with Aaron in the alternative should Dante predecease her. The will left one of the three Bossley Park properties to Maurisio with a condition that Dante had the first right to buy the property in the event Maurisio wished to sell it. The rest of the estate was left to Dante, including the property in which Bertilla lived with Dante. In the event either Dante or Maurisio predeceased her, their share would go to Aaron.

On 31 January 2021, Maurisio attended the home of Bertilla and Dante. Dante’s version of what occurred is that he was called by Maurisio’s son, Aaron, who told him that Maurisio was on his way to the house and he was very angry about Dante selling their former business’ truck that had been parked at Bertilla’s house. Aaron told them to lock themselves in the house and that “If you think the beating you got when you had the stroke was bad, this will be worse because you sold the truck.” Maurisio came to the house and knocked on the rear door of the house. He then began to slam his fists on the door and was yelling to be let in. He was walking up and down the side of the house, looking through the windows. Aaron then attended the premises and Maurisio left with his son.

Maurisio gave evidence that he arrived and knocked on the door, but did not say anything or speak to anyone. He knocked loudly as there is a basement. Maurisio stated that as far as he knew, no one was home but that if someone was home, his knocking would have got their attention (Tcpt, 19 May 2025, p 71(10)).

Either way, the undisputed result of this visit was the police being called and Maurisio being charged with two counts of intimidation (one against Dante and one against Bertilla), stalk/intimidate and malicious damage to property. A Provisional Apprehended Domestic Violence Order (ADVO) was made on 1 February 2021 against Maurisio to protect Dante.

The police attended the home of Bertilla and Dante on 28 February 2021 to take a statement from Bertilla. This statement was conducted with the assistance of an interpreter on the telephone, and was video recorded. Bertilla stated that around 4pm on 31 January 2021 there was a knocking on the door. The knocking was described as “a violent beating on the door” (Tcpt, 19 May 2025, p 41(45)) and “with fury” (Tcpt, 19 May 2025, p 41(38)). She said Aaron had called saying Maurisio would shortly arrive but she was confused about what he was saying. She said she saw Maurisio through the window, and he looked like he had a “rather stormy attitude and not a calm one”. She stated Dante and herself were frightened and did not open the door. When asked if he said anything while knocking, Bertilla said no. She stated that Maurisio was knocking violently, and this caused a dent in the door. When asked what she had thought would happen if Maurisio was let in, Bertilla said they called the police to try and “avoid the type of experience that had happened two or three times already in the past” (Tcpt, 19 May 2025, p 45(15)). She said it was possible that a physical confrontation may have ensued.

The Court accepts Dante’s and Bertilla’s evidence of this event both because of the view I have taken about Dante’s credibility and that Bertilla’s account was given only four weeks after it had occurred.

A Final ADVO was made on 12 April 2021 against Maurisio to protect Dante. This occurred in the absence of Maurisio (Tcpt, 20 May 2025, p 89(3)).

Bertilla and Dante attended Fairfield Court on 4 May 2022 to give evidence in the proceedings against Maurisio. Maurisio wrote in his diary on that date “COURT! WHAT AN EMBARASSING JOKE OF A DAY – BACK ON JULY 28TH FOR JUDGEMENT *THE DAY THAT MY MOTHER SHOWED HER TRUE COLOURS AND DREW A LINE IN THE SAND”. In his evidence, Maurisio stated that his mother’s version of events given in court was untrue.

Bertilla attended the offices of Mr Galluzzo on 30 May 2022 to have a will prepared. It was executed that day. Under this will, Bertilla appointed Dante the sole executor of her estate. Maurisio was left a legacy of $300,000. The residue of the estate was left in its entirety to Dante, which is the same as the final will but contained no contingency.

Mr Galluzzo gave evidence that the meeting was conducted in Italian, which he speaks fluently. Mr Galluzzo asked Bertilla about her relationship with her children and Bertilla told him that she as not making equal provision for them as there was some history between them. She had been advised that she should leave a certain amount to Maurisio, even though she wanted to leave the entire estate to Dante, so that the will would not be challenged. Bertilla asked about whether she needed to leave something to Maurisio and Mr Galluzzo recommended briefing counsel. Bertilla asked Mr Galluzzo to recommend a figure. However, Mr Galluzzo gave evidence that it is not his practice to advise testators on this sort of issue. Mr Galluzzo stated that the figure of $300,000 was suggested by Bertilla, and that figure was discussed again later after counsel had been briefed.

At this meeting, Bertilla provided Mr Galluzzo with handwritten notes regarding the provisions she wanted made in the will. These notes were translated from Italian into English and included:

On 28 July 2022, Maurisio wrote in his diary “COURT JUDGEMENT * INTIMIDATION – SECTION 10. DAMAGES – NO CONVICTION – 12 MNTH GOOD BEHAVIOUR & 12 MNTH AVO”.

Mr Galluzzo gave evidence that Mr Ellison SC was briefed following the 30 May 2022 meeting referred to in [51] above. On Senior Counsel’s advice, a statutory declaration in the form of questions and answers was prepared. Bertilla returned to the office of Mr Galluzzo on 26 October 2022, where she gave further instructions in relation to her will, being the inclusion of a contingency provision.

Bertilla returned on 7 November 2022 to sign the will and Mr Cavallero attended on this date to interpret and translate. Bertilla told Mr Galluzzo and Mr Cavallero that she needed further time to complete her notes, and she sat in the conference room in Mr Galluzzo’s office to do so. Those handwritten notes included:

Bertilla’s statutory declaration, made at the time she executed the will, was in these terms:

Mr Cavallero made a statutory declaration on 23 December 2022 which included:

There was no dispute about the applicable legal principles.

In Bassett v Bassett [2021] NSWCA 320 at [78]-[88] (Bell P; Leeming and Payne JJA), the New South Wales Court of Appeal summarised what the Court must undertake pursuant to ss 59(1)(c) and 60(2) of the Act, which I respectfully adopt and apply:

Recently, the New South Wales Court of Appeal in Angius v Angius [2025] NSWCA 113 (Mitchelmore JA; Bell CJ and Ball JA agreeing) said at [25]:

Ms Sewell relied on Tarbes v Taleb [2023] NSWSC 565 for the meaning of both “adequate” provision and “proper” maintenance. At [200]-[201], Meek J stated:

The Court’s attention was also drawn to Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474, where Hallen J at [33] and [463] stated:

While the term ‘estrangement’ is rarely useful (see Rada v Smith [2024] NSWSC 273 at [26]-[28]; Leverton v Prendy [2024] NSWSC 1638 at [139], [142]-[143]), this discretionary factor was outlined by Ward JA (Meagher and Emmett JJA agreeing) in Burke v Burke [2015] NSWCA 195 at [88]-[93]:

On this point, Ms Sewell also drew the Court’s attention to the decision of Slattery J in Kouroutis v Kouroutis [2023] NSWSC 608 in which his Honour said:

The ultimate submission made on behalf of Maurisio was that the legacy of $300,000 was not adequate and proper provision for him, and that he should receive an amount that was equivalent to the gross value of the vacant lot, being approximately $1,000,000.

To support this submission, four points were made: Maurisio’s financial need, Bertilla’s moral obligation, Bertilla’s insufficient knowledge about Maurisio’s circumstances and her false beliefs.

Ms Sewell submitted that it was not necessary for Maurisio to show financial need, but instead the Court should consider his financial need against the provision left to him. Adequate provision for Maurisio would be an amount that is sufficient for him to pay off his debts and have a buffer against contingencies to supplement his superannuation and provide for his increasing health needs over time. Maurisio has financial needs, and his debts alone are greater than the legacy. While Ms Sewell accepted this is not a case where Maurisio is unable to meet his expenses from his current income, it was submitted that Maurisio is not in a position to pay off his various debts at the rate at which someone of 63 years of age would like. The amount of provision sought was submitted to be intended to cover the discharge of Maurisio’s current mortgage of $151,282, top-up his superannuation or be a buffer for contingencies in the amount of $300,000 and potentially pay out the overdraft of $129,709. No evidence as to the amount of superannuation required was provided.

It was submitted that the estate is of sufficient size provide adequately and properly for Maurisio’s maintenance and advancement in life, while still providing Dante with a more than generous provision, as intended by Bertilla.

It was argued that Maurisio did nothing to diminish the moral obligation Bertilla had in relation to him. While Ms Sewell conceded that, as an adult child, Maurisio did not deserve any particularly special treatment, it was submitted that the moral obligation to provide for him remained. The deterioration of the relationship between Bertilla and Maurisio only occurred due to the deterioration of the relationship between Dante and Maurisio, which was submitted to be irrelevant.

Both Bertilla and Maurisio contributed to the initial period where there was no contact, not just Maurisio. Ms Sewell submitted that Bertilla also did not attempt to contact Maurisio, and that the Court should conclude that Dante had effective control over Bertilla, which would have made it difficult for Maurisio to contact her.

It was contended that Bertilla had no contact with Maurisio for years prior to her death, she therefore had no information on which to assess whether the legacy was adequate or proper provision for his maintenance and advancement in life. Bertilla was simply focused on providing an amount of provision in the erroneous belief some provision would prevent a claim being made, rather than whether proper provision was being made.

It was submitted that the handwritten notes contained false statements which indicate that Bertilla believe untrue things about both Maurisio and Dante.

The Court’s attention was drawn to what were said to be inconsistencies and inaccuracies in Bertilla’s notes:

It was submitted by Ms Sewell that it would be unbelievable for both Bertilla and Dante to attribute the aneurysm to Maurisio at the time, particularly when Dante allowed Maurisio to take him to various hospital and doctor’s appointments. The fact that Bertilla appeared to believe this was relied upon as being important. This belief was submitted to be one which became a fixed and firm one in the mind of Bertilla, and existed as a result of a repeated narrative told by Dante who wished to poison Bertilla against Maurisio.

Ms Sewell invited the Court to infer that Dante had deliberately sought to turn Bertilla’s attention from Maurisio to himself. This inference was submitted to be available from:

Mr Ellison SC submitted that the provision made for Maurisio was adequate considering that:

Mr Ellison SC overarching submission was that this was not a case of competing financial claims, but competing moral claims, with Bertilla giving detailed consideration of how those claims should be settled in her will.

The first question for determination is whether the legacy is proper and adequate provision for Maurisio in all the circumstances. While it is accepted that whether proper provision has not been made is not simply a financial calculation, it is instructive to start by considering the amounts which Maurisio submitted would have been proper provision in his “wish list” (see [12] above).

$300,000 was claimed for additional superannuation and contingencies. No evidence was led as to how much Maurisio requires in superannuation. Contingencies are a highly subjective assessment which require instinctive synthesis rather than scientific calculation. However, what is significant is that this part of Maurisio’s claim is in fact what he receives from the estate.

$100,000 was claimed for health and medical expenses. Beyond an unsupported assertion by Maurisio, there is no evidence of his likely medical expenses, and how much of those expenses would not be covered by Medicare. There is no basis in the evidence to conclude that any amount would be required for these matters.

The balance of the claim consists of items that were incurred in the ordinary course of Maurisio’s life as an independent adult and that he is currently servicing. There was no suggestion that he will not in the future be able to satisfy these items from the sale of his property, either as part of downsizing with age or out of his estate:

The sole item which Maurisio does not have any prospects of earning or otherwise obtaining was a top up to his superannuation and a buffer for contingencies. The legacy left by Bertilla met those needs. However, because all of the circumstances of the case must be taken into account, this conclusion can only be a starting point, albeit an essential one. Considering Maurisio’s financial position more generally, assuming the application of his legacy to superannuation and a contingency, Maurisio’s assets considerably exceed his liabilities. He is able to meet his current expenses including servicing those liabilities, which will otherwise be met upon sale of his property whether in his lifetime or from his estate. As I will develop further below, the Court also accepts the factual basis for Bertilla’s view that Maurisio had treated Dante very badly and he had also affronted her directly with his behaviour. These matters, together with the strength of Dante’s claim in its own right and when compared to Maurisio’s, all confirm the Court in its assessment that the legacy was adequate provision for Maurisio.

The fact that Bertilla could have done more for Maurisio given the size of the estate does not necessarily mean that the legacy was not adequate and proper provision for Maurisio. I have taken the size of the estate into account in reaching the conclusion that Maurisio has failed to demonstrate that, in all the circumstances of this case, the legacy was not adequate provision for Maurisio’s proper maintenance, education or advancement in life.

I should record for completeness that Mr Ellison SC argued there was another way of approaching the question. He submitted that in any given case there will be a range of what might be adequate and proper provision. The question in this case is whether $300,000 was so obviously outside the range in all of the circumstances as to warrant intervention by the Court. He submitted the answer was “no”.

While I accept this approach has an attractive simplicity, I do not agree that it reflects the statutory task and consider that it risks distracting from that task. The idea of a “range” is certainly reflective of the Court’s discretionary decision in making a family provision order. As appellate authorities have recognised, a proper exercise of the discretion can yield results within a range. However, in my respectful opinion, in determining whether the jurisdictional prerequisite in s 59(1)(c) is met, the Court’s satisfaction (see the chapeau to s 59) involves a binary conclusion: the provision in the will (or outcome on intestacy) for the claimant is either adequate or not. To import the notion of a range is not authorised by the language of the Act.

However, if I am wrong in the conclusion set out in [83] such that the Court’s discretion to make a family provision order is engaged, I would decline to do so in the exercise of that discretion. That outcome is based upon all of the reasons set out in [79] to [83] above and the fact of the legacy itself. Furthermore, it is based upon my firm view that this is a case of a competent testator who the evidence clearly demonstrates had given very careful consideration to the moral claims of her children and, as such, whose wishes should be given great (and, in this case, dispositive) weight (see s 60(2)(j) of the Act). As I shall next develop, I do not accept Maurisio’s submission that her careful consideration is vitiated by material error on her part.

I have considered Maurisio’s submissions regarding what were said to be errors and inconsistencies in Bertilla’s notes. It may be accepted that relevant errors or inconsistencies could either favour someone for whom provision is made (e.g. wrongly attributing to that person benefits provided to the deceased) or disfavour someone for whom no or inadequate provision has been made (e.g. wrongly attributing to that person unsatisfactory conduct towards the deceased).

However, applying the approach of Slattery J in Kouroutis (see [65] above), I am not satisfied that Bertilla’s “broad appreciation of the relationship” (being either the relationship between the brothers, or her relationship with Maurisio or Dante) was demonstrably materially incorrect such that the Court should infer that Bertilla “did not soundly evaluate” Maurisio’s (or, for that matter, Dante’s) claims upon her testamentary bounty. Given the independent and objective evidence, and the Court’s view of the respective credibility of each brother, the Court is well satisfied that Bertilla was correct in her assessment that as between her two sons Dante was the one far more sinned against than sinning and that she could rationally give that dispositive weight in how she should divide her estate between them. The same applies to her assessment of Maurisio’s conduct towards her.

I will deal in turn with the matters set out in [74] above identified by Ms Sewell:

The Court does not accept the submission that Dante poisoned Bertilla’s mind against Maurisio. The Court accepts Dante’s evidence and that of both Messrs Galuzzo and Cavallero, supported by her notes themselves, that Bertilla was an independent and capable person who could make up her own mind. If an explanation for the change between her penultimate and final wills is required, that is provided by the events surrounding the ADVO (see [44] to [47] above). Bertilla attended court on 4 May 2022 to give evidence against Maurisio, and Maurisio wrote in his diary that his mother had ‘shown her true colours’. Bertilla then attended the offices of Mr Galluzzo to change her will on 30 May 2022. Notably, while it is a smaller amount than in her 2018 will (see [43] above), Bertilla still left Maurisio something.

Finally, I record that in reaching the conclusion set out in [87] above, I have not overlooked that:

Maurisio’s amended summons will be dismissed. The Court will hear the parties as to costs if they are not able to be agreed.