Mazzeo (by his tutor NSW Trustee & Guardian) v Sidoti

1. [1]

   This is an application by the plaintiff, Carmelo Mazzeo by his Tutor, the New South Wales Trustee and Guardian for a family provision order pursuant to s 59 of the Succession Act 2006 (NSW) from the estate of his late mother, Terese. The defendant executor is Carmelo's sister, Santina Sidoti. Without intending any disrespect, I will refer to the parties by their given names.

2. [2]

   On 8 May 2025, Santina's solicitor filed a notice of ceasing to act. Since then, Santina has declined to participate in the proceedings. Given Carmelo's circumstances as a person whose financial affairs are under management, the Court's overriding concern has been to manage these proceedings to a hearing in the most cost-effective way possible, while giving Santina every opportunity to participate if she wished. She has not taken that opportunity. These reasons set out the procedure the Court has followed and why Carmelo is entitled to the relief he seeks.

3. [3]

   Mrs M Pringle of Counsel appeared for Carmelo instructed by Mr C Zucker, Solicitor. The Court gratefully acknowledges the sensible and efficient way they have conducted the matter. Much of what follows, in particular as to the merits of Carmelo's case, is drawn from Mrs Pringle’s thorough written submissions. There was no appearance for Santina.

Procedural history

1. [4]

   Terese died in February 2023, having published her last will on 22 August 2014.

2. [5]

   By her will, Terese appointed Santina as executor and left her estate to her two children in unequal shares:

3. [6]

   The gross value of the estate is estimated at approximately $3,200,000. The residuary estate included a property at Marrickville and the half share of the unit.

4. [7]

   On 30 August 2024, Santina transmitted the title of the property into her name.

5. [8]

   On 17 September 2024, that is to say some seven months out of time, Carmelo, by his Tutor, filed his summons for further provision from the estate.

6. [9]

   On 22 January 2025, Santina sold the property for $2,800,000.

7. [10]

   On 17 March 2025, the parties participated in a court-annexed mediation which failed to resolve these proceedings. It is important to note that while Santina was represented by a solicitor up to and including the mediation, she did not file or serve any of the affidavits required by paragraph 18 of Practice Note SC Eq 7, nor has she filed any evidence or other documents since then.

8. [11]

   While it is not necessary for me to make a finding, it seems to me there is much force in Mrs Pringle's submission that the likely reason for Santina ceasing to engage with these proceedings is the fact that she has presumably distributed to herself the proceeds of sale of the property and does not want to concern herself with the unit already half owned by Carmelo. If Santina has distributed those proceeds then they nevertheless form part of the notional estate.

9. [12]

   As I have already noted, on 8 May 2025 Santina's solicitor filed a notice of ceasing to act. In that notice, he set out the last known home address, email address and phone number for Santina. After the notice was filed there were two further directions hearings before the Registrar in Probate. There was no appearance for Santina at either of those directions hearings.

10. [13]

    On 27 June 2025, the Registrar in Equity listed this matter for hearing before me for today, 13 August 2025.

11. [14]

    Having become aware of Santina not being represented and her non-appearances, in accordance with usual my practice in such cases I listed the proceedings for directions before me on 14 July 2025. There was, again, no appearance for Santina on that occasion.

12. [15]

    I directed that the Court be provided with Carmelo's full written submissions and a court book containing the evidence to be relied upon, and listed the matter for directions and/or judgment in the absence of the defendant for 31 July 2025.

13. [16]

    On 31 July 2025, there was, again, no appearance for Santina. Mrs Pringle, on behalf of Carmelo, sought and was granted leave to move on the summons in the absence of Santina, but on the basis that any orders would be stayed up to and including today, the original hearing date, in order to give Santina one last opportunity to participate.

14. [17]

    At the conclusion of the hearing on 31 July 2025, I made these Orders:

15. [18]

    Today is the day originally fixed for the hearing. Santina has not complied with Order 10 and, again, she has not appeared. In relation to each of the hearings before me, being 14 July, 31 July and today, I am satisfied that every effort has been made to give Santina proper notice of each hearing date and that, in particular, she has been put on notice of the Orders and today’s hearing by service through the email address and the phone number.

16. [19]

    In relation to today, the evidence satisfies me that Order 12 has been complied with. In particular, the evidence is that on 1 August 2025, a copy of the Orders and a covering letter were emailed to the email address and sent by SMS to the phone number. They were also left in the post box for the home address on 4 August 2025. The email did not bounce and there is no suggestion that the SMS did not get through. The letter stated:

17. [20]

    Mr Zucker’s office has received no response to the email or the SMS.

18. [21]

    In relation to the home address, the letter and Orders were delivered to the Court’s registry under cover of a typewritten and unsigned note:

19. [22]

    The Court provided to Mr Zucker copies of the material referred to in the preceding paragraph. An affidavit from the Legal Administrator in Mr Zucker's office which has been read today sets out what was then done:

20. [23]

    Notwithstanding the return of the documents sent to the home address, the Court is satisfied by reason of the email and SMS and the latest evidence filed today, that Santina is on notice of today and that otherwise all reasonable efforts have been made to put her on notice.

The substantive proceedings

1. [24]

   I will next set out why the Orders included a family provision order in favour of Carmelo.

2. [25]

   On 31 July 2021, the matter proceeded before me in accordance with the principles for undefended hearings recently set out by Griffiths AJ in Take Off Opportunities Pty Ltd atf The Clear Runway Trust v Susan Quinn Pty Ltd atf The Susan Amelia Quinn Trust [2025] NSWSC 231 at [14] to [18] and which I gratefully adopt:

3. [26]

   There is no dispute that Carmelo is an eligible person under the Act. At the date of Terese's death, she was survived only by Carmelo and Santina. Carmelo suffers from an intellectual disability and schizoaffective disorder as well as Crohn's Disease, a serious condition affecting his gut health. On 18 October 2023, the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) made financial management orders for Carmelo's estate. The Tutor was appointed as his financial manager.

4. [27]

   The summons was filed some seven months out of time. While there is no explanation for the delay by the Tutor as Carmelo’s financial manager, the Court accepts that Santina's failure to engage with the litigation means that there can be no real resistance to an order extending the time in which to claim.

5. [28]

   In circumstances where Carmelo is an incapable person, dependent upon others to act on his behalf, the Court accepts that he would suffer greater prejudice if the extension of time was not permitted. Furthermore, there is no prejudice to any person if the Court does extend the time up to and including the date the summons was filed. Santina did not sell the property until late 2024, being after the claim was commenced. The sale settled in January 2025. Having received the sale price of $2,800,000 for the property, Santina ceased to participate in the proceedings.

6. [29]

   It may be accepted that the estate is moderately large with its estimated gross total value exceeding $3,200,000, based solely upon the values of the realty. The major asset was the property. The Court accepts Mrs Pringle's submission that the value of the gift of the life interest in the half share of the unit has proven to be a mixed blessing for Carmelo. The analysis of the effect of the rental income from the unit on Carmelo's Centrelink benefit is in evidence. It clearly creates disadvantage and complications for him.

7. [30]

   Carmelo is single and resides in community housing in suburban Sydney where he receives in-house assistance from carers. There does not appear to have been any difficulty in his relationship with his mother, who was said to be his greatest support. The report of the NCAT decision suggests that he depended upon his mother to assist him in managing his affairs. Regrettably, Carmelo does not appear to have a functional relationship with Santina.

8. [31]

   Carmelo is now 62 years of age. As to his financial circumstances:

9. [32]

   The Court accepts Mrs Pringle’s submission that adequate and proper provision has not been made by the will for Carmelo in all the circumstances. He is a child of Terese. It may be accepted that at the date of her death he was not dependent upon her for financial support, and had not been so for some years before her death, living independently of his mother. Nevertheless, while he has no dependents, he does suffer from psychological and physical conditions which make it clear that he is unable to support himself.

10. [33]

    In my respectful opinion, having regard to the principles set out, for example, by Hallen J in Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at [473]-[474], in relation to claims for provision brought by adult children, while there is no need for an applicant adult child to show some special need or special claim, this is clearly a case where Carmelo's circumstances of health and dependency strongly point in the direction of an order for provision being made if the estate is large enough for that to occur. This estate is large enough. While it is unclear why Terese did not make greater provision for Carmelo, Mrs Pringle submits, but it is not necessary for me to decide, that Terese may have had a misapprehension that Carmelo's pension entitlements would cover his need.

11. [34]

    The Court accepts Mrs Pringle's submission that appropriate provision for Carmelo is the one half of the unit in which he presently has been given a life estate, noting that the assets test for a single non-home owner would allow Carmelo to hold cash of $579,500 without affecting his entitlement to a pension. In the event that the Tutor as financial manager decides it should purchase alternative accommodation for Carmelo, the assets test for a single homeowner allows him to hold cash assets of $321,500. Another option could be for the establishment of a special disability trust, subject to the Tutor’s assessment of Carmelo's future needs.

12. [35]

    The order proposed on Carmelo's behalf will mean Carmelo will own the whole unit, giving him an asset of sufficient size that will generate income, provide the possibility for sale to provide alternative accommodation, and a fund, if necessary, for vicissitudes in later life. Importantly for present purposes, the order proposed will leave Santina with the major share of the estate as contemplated by Terese's will. At least as matters presently appear, Santina seems to have considered that share to be sufficiently adequate that she has decided not to participate further in these proceedings.

13. [36]

    Mrs Pringle suggested that if Santina had engaged with the litigation, it might have been open to Carmelo to submit that he should have received more than the estate's half share in the unit. That may be so, however, the Court is satisfied that Orders 1 to 8 were the orders that should properly be made on the summons.

14. [37]

    Having regard to Santina's non-participation in the proceedings, I also accept the good sense in Mrs Pringle’s submission that there be no order as to Carmelo's costs from the estate or as against Santina. It is clear that any further engagement between Carmelo and Santina should either be avoided or, at least, kept to a minimum. For that reason, and given her non-participation, I was also satisfied that in what I expect is the almost certain outcome that Santina will not comply with Orders 2 and 4, it is appropriate that Mr Zucker be authorised to execute the relevant papers to effect the transfer of the estate’s interest in the unit in the event of default by Santina.

Conclusion

1. [38]

   There being no application by Santina to defend the proceedings in accordance with Order 10, the Court is not required to make any further orders today. Orders 1 to 8 will take effect on and from tomorrow, 14 August 2025.