Pizzino v Pizzino[2010] QSC 35

SUPREME COURT OF QUEENSLAND

[1] The applicant is the son of Mrs Maria Pizzino (the deceased) who died on 10 May 2007. Apart from the applicant, the deceased was survived by her estranged husband Mr Salvatore Pizzino (Mr Pizzino) and her daughter Ms Joyce Pizzino (Ms Pizzino) and the applicant’s sons Jason Pizzino (Jason), Andrew Pizzino (Andrew) and Michael Pizzino (Michael).

[2] The deceased’s last will was made on 27 April 2007. She appointed her daughter and her husband as the executors and gave the whole of her estate to the executors on trust to give a one-half share to the applicant and his sons in equal shares as tenants in common and the remaining one-half share to her daughter.  The estimated value of the deceased’s assets at the date of her death (which comprised five real properties and bank accounts) was between $3.8m and $4m. There were no outstanding liabilities of the deceased at the date of her death, although there was potential liability for capital gains tax and realisation costs in respect of the transfer of the properties.  In round terms the value of the applicant’s one-eighth share of the deceased’s estate at the date of her death was worth $450,000.

[3] The applicant applies for an order that adequate provision be made for his proper maintenance and support out of the deceased’s estate.

[4] Ms Pizzino in her capacity as an executor and a beneficiary and Mr Pizzino had agreed with the applicant’s sons that any order for further and better provision made by the court in favour of the applicant should not affect the one-half share given to Ms Pizzino.  The applicant has not consented to that arrangement. 

[5] During the course of the hearing the applicant’s sons proposed that the deceased’s will be varied so that the joint gift of the one-half share to the applicant and his sons was varied to give the applicant, in addition to the one-quarter share of that one-half share, a right to reside in the deceased’s Park Road property for his life, subject to keeping the property in good repair. This proposal was on the basis that the applicant’s sons would succeed to that property on the termination of the applicant’s right of residence.

Applicant’s history

[6] The deceased and her husband migrated to Australia from Italy and were married in Australia.  The applicant was born in 1959.  Mr Pizzino worked as a drainer.  The deceased worked in factories.  She and her husband worked hard and were frugal and acquired real estate.

[7] The affidavits of the applicant and his father provide some details of the family life as the applicant grew up.  It was not surprising that there were family tensions, as the applicant embraced the activities available to him as a youth growing up in Australia and the applicant’s parents maintained many of their Italian cultural values and practices.  The applicant was expected, and did, provide assistance to his parents in maintaining their rental properties.  Overall the impression that I gained from all the evidence was that they were a close family as the applicant grew up. 

[8] The applicant was educated to grade 9.  He then worked in the construction industry and sold home improvement products.  He qualified as a house painter at about the age of 21 years.  At the age of 23 years he commenced studying homeopathy and completed his diploma in 1987.  He went into private practice as a homeopath.  He became involved in professional associations relating to homeopathy. 

[9] The applicant married in 1982.  The applicant and his wife lived at Emperor Street, Annerley which property was owned by Mr Pizzino.  They lived first in unit 2 and then in the upstairs residence (unit 3) rent free.  Their sons were born in 1986, 1987 and 1989.  The applicant and his wife separated at the end of 1993.  They lived separately in the same residence at Emperor Street, until the applicant’s wife moved out in mid 1995.   They divorced in about 1997.  The applicant described the period when his marriage broke down as one of great stress for him.  It happened when he was heavily involved in the work of his professional associations to achieve recognition of professional standards for homeopathic medicine. 

[10] The applicant’s parents commenced living in separate houses from the early 1990s, but remained in close contact with each other, as their houses were within walking distance.

[11] After the applicant and his wife separated, the applicant had access to his sons every second weekend.  This access often involved visits by the grandsons to the deceased who thereby assisted the applicant during this stage.

[12] The applicant had a gambling problem which worsened after he and his wife separated.  He had himself “signed out” of the Treasury casino in 1996. 

[13] A receipt dated 26 August 1996 (exhibit 4) was produced during the cross-examination of Mr Pizzino by Mr Lee of counsel.  The receipt was in his handwriting and signed by him and it acknowledged receipt of a loan of the sum of $36,500 to be repaid in full at 7 per cent simple reducing interest by $300 per month and provided for the possibility of the applicant working for his father in lieu of making the payment of the monthly instalment.  The applicant did not recall the loan, but confirmed the receipt was in his handwriting.  There is no reference to this loan in Mr Pizzino’s affidavit.

[14] The deceased was diagnosed with cancer in 1998 and underwent surgery and radiation treatment.

[15] Until about 2001 the applicant worked as a homeopath.  He was living in the residence at Emperor Street when the property caught fire in 2001 and the contents were destroyed.  After this house fire the applicant relocated to the deceased’s property at Park Road where he lived rent free, did some lecturing for the Australian Institute of Applied Science and returned to working as a house painter.  He also continued to treat some homeopathy clients for additional income. The applicant agreed to pay various amounts to his mother as rent for the Park Road property from June 2003, but did not make regular payments or pay the full amount, and ceased making any payments after July 2005.

[16] Between 2001 and 2006 the applicant was in a relationship with another person and became dependent on illicit drugs. 

[17] During this period the applicant endeavoured to enter into an arrangement with his creditors under part IX of the Bankruptcy Act 1966, but the arrangement was rejected by the creditors. Some of the debts that the applicant still owes arise from this period.  He defaulted on a bank personal loan and judgment in the amount of $29,480.33 was obtained against him in the Magistrates Court on 1 October 2003.  That debt was assigned to a third party Baycorp Advantage Investments (Australia) Pty Ltd) and has increased with accrued interest.

[18] The applicant’s poor financial position during this period was reflected in the requests that he made of his sons for loans. In July 2005 Andrew lent him $500.  The applicant also had a number of household bills at that time that were outstanding.  Andrew paid a couple of bills using his credit card.  Eventually the applicant repaid to Andrew the moneys he had borrowed from him.  The applicant asked Jason to lend him $1,000 or $2,000 in July 2005 which Jason refused to do.  There were other occasions when his sons lent small sums to the applicant, but the applicant repaid what he borrowed from his sons. 

[19] Around this time the applicant felt guilt about his gambling problem and suggested to his mother that she alter her will to leave a property to him, but what he would have otherwise received, she should leave to his sons, on the understanding that he had that they would look after him from that provision.  The fact that the applicant described this suggestion in his affidavit as being prepared, on his part, “to waive my share of the estate in favour of my sons” suggests a belief by the applicant to an entitlement to a specified share of the deceased’s estate, when there is no such entitlement.

[20] The deceased made a will on 7 July 2005 in which she gave the applicant a right to reside in one of her properties chosen by him on the basis that he pay all rates, taxes and outgoings in respect of the property and keep it in good repair and on his death that property would pass to his sons.  The other gifts under that will were one-half share of the real property owned by the deceased was left to Ms Pizzino with the remaining one-half (after taking into account the property affected by the applicant’s right of residence) to the applicant’s sons.  The rest and residue of the estate was given to Ms Pizzino. The applicant asserts that he subsequently discussed with his mother that the will should be altered back to the 50/50 split between himself and his sister, because he did not think his sons would properly support him.

[21] Mr Pizzino states in his affidavit that his wife had said to him on many occasions that she was concerned that if she left a half share of her estate to the applicant, he would waste his share and lose it, because he was not able to manage money and that her grandsons would not receive anything when the applicant died. 

[22] From 2005 the deceased was experiencing major health problems that required her to have regular hospitalisation and treatment.  In this period she was cared for primarily by her daughter and her husband.

[23] On Boxing Day 2006 the applicant was feeling considerable financial and emotional distress, there was a disagreement between the applicant and his father and the applicant cut his left arm with a pocket knife, lost a lot of blood and was taken to hospital where he required surgery.  His mother was nearby during the self-harm incident and saw the applicant bleeding on the floor whilst waiting for the ambulance.  There is a conflict in the evidence about whether his mother was in or out of the room when the applicant injured himself, but that is a detail that it is not necessary to resolve. On any view this incident would have been traumatic for the deceased, whether she saw the applicant inflict his injury or not. Although the deceased’s condition was terminal at this stage, the suggestion in the affidavit of Mr Pizzino (which was also made by Jason in his affidavit) that this incident contributed to the decline in the deceased’s health (without any medical evidence to support such claim) is in the nature of exaggeration.

[24] The deceased visited the applicant whilst he was in hospital for his self-inflicted injury.  The applicant was unable to work after being released from hospital while he recovered from his arm injury.  The applicant called on his father on 5 January 2007 and borrowed $300. Mr Pizzino characterised that visit in his statement in support of obtaining a domestic violence order in terms that the applicant “demanded money in a threatening manner”. Although the applicant saw his conduct in the light of a son who was desperate for some financial assistance from his father and did not perceive himself as threatening, it is credible that was how Mr Pizzino viewed his son’s conduct at the time.

[25] When the applicant called to see his father on 10 January 2007 to seek some ongoing financial support, Mr Pizzino did not answer the door and the applicant did not speak to him in person.  The applicant went to see his mother and accompanied her to the bank where she withdrew $4,000 which she lent to the applicant to assist him in meeting expenses. On that day Mr Pizzino had thought that the applicant was angry and he was afraid for his safety and obtained a domestic violence order against the applicant on 11 January 2007.  The domestic violence order extended to prevent the applicant from having contact with his mother who did not apply for the order, but was a named person under the order. This caused difficulties for the applicant maintaining close contact with his mother.  She continued to communicate with him.

[26] Eventually the applicant was able to obtain variations of the domestic violence order on 24 April and 8 May 2007, so that he could meet and speak with his mother, without risk of breaching the domestic violence order.  After the self-harm incident, he visited with his mother a number of times before she passed away on 10 May 2007.

[27] Submissions were made on behalf of the respondents and the applicant’s sons on the basis that there had been an estrangement between the applicant and the deceased from the end of 2006. The applicant fell out with his father, but his mother got caught up in the domestic violence order that was made on Mr Pizzino’s application. There was not a breakdown in the relationship or estrangement between the applicant and his mother.  Their contact was made difficult by the existence of the domestic violence order, but the deceased did not abandon the applicant who obviously was in a troubled emotional state at this time, as shown by the self harm incident.  During this period the deceased did not alter the arrangement whereby the applicant resided in the Park Road property without paying rent.  The deceased must have cooperated in respect of the variations to the domestic violence order.

[28] The applicant has not lodged any tax returns from 2001 onwards.  He is keeping the Australian Taxation Office informed of the progress of this application.

[29] The applicant has a number of health issues.  He has numbness and pain as a result of the injury to his left arm.  He has a frozen right shoulder.  He suffers bursitis of the right knee.  He expects that he will need dentures.  He is also concerned about respiratory distress that he suffers from painting in poorly ventilated areas. He identifies psychological issues that arise from his recovery from being both a substance abuser and gambling addict, and stress and depression associated with the estrangement from his father and his sons and his concern about job security.  The applicant has undergone a few counselling sessions since the end of 2007 for his psychological problems.  Although no medical reports were relied on by the applicant, the nature of his work and personal history bear out the health issues he identifies. 

Property transactions

[30] In about April 1975 a property on Stradbroke Island was purchased by Mr Pizzino in trust for the applicant and his sister in equal shares. The funds Mr Pizzino had accumulated in an account (which he estimates stood at $1,000) were used as part of the deposit for this property. 

[31] In 1982 Mr Pizzino and his wife bought a property at Torrens Street, Annerley as an investment property for about $48,000.  It was sold a few years later for about $72,000.  The proceeds of sale were put towards the purchase of a property at Cooroy for about $85,000.  Mr Pizzino also made a financial contribution to the purchase of the Cooroy property.  In early 1994 the cabin which the applicant built on the Cooroy property was destroyed by fire.  The Cooroy property was then sold and the proceeds were used to purchase a property at Kin Kin.  Mr Pizzino lent the applicant $12,000 for the purchase of this property which the applicant repaid when the Kin Kin property was sold about one year later due to the financial problems caused by the applicant’s gambling. 

[32] At the applicant’s request, in 1987 Mr Pizzino transferred to the applicant and his wife a one-half interest in the property at Emperor Street in exchange for the one-half interest in the Stradbroke Island property that was held on trust for the applicant.  The purchase price shown in each contract was $39,500.  The property at Emperor Street was then sub-divided by the registration of a building units plan and in August 1989 the upstairs residence (Lot 3) was transferred to the applicant and his wife and Lots 1 and 2 were transferred to Mr Pizzino.   

[33] Upon his divorce, the applicant obtained the title to Lot 3 at Emperor Street and paid his wife a lump sum of $50,000.  The applicant paid his wife with funds from a loan that was secured on Lot 3.

[34] When the applicant was in financial difficulty in 1999, he approached Mr Pizzino for assistance. By contract dated 17 December 1999 Mr Pizzino purchased Lot 3 from the applicant for $140,000.  The purchase moneys were used by the applicant to pay out the loan over Lot 3 which had a balance of $116,849.08. At least $25,000 of that loan was due to gambling debts.  In November 1999 Mr Pizzino obtained a real estate appraisal for Lot 3 that estimated its value at between $135,000 and $145,000.  The applicant had another real estate agent who was a homeopathy client of his give an oral estimate of the value of Lot 3 at that time at between $195,000 and $210,000. 

[35] Mr Pizzino entered into a deed dated 17 December 1999 with the applicant in relation to the sale of Lot 3 and Mr Pizzino’s agreement to rent Lot 3 to the applicant for $800 per month for a term of one year.  This deed also included a covenant by Mr Pizzino that he would include a clause in his will permitting the applicant to have the use and occupation of Lot 3 during his life on condition that he pay the insurance, rates and taxes and other outgoings in respect of Lot 3 and keep it in good and habitable state of repair.  This deed also included a covenant that if Mr Pizzino sold Lot 3 during his lifetime, he would pay $50,000 to the applicant, in lieu of the obligation that Mr Pizzino had otherwise assumed to include the clause in his will granting the applicant the right to reside in Lot 3. Although the applicant asserts that he had reached a different arrangement with Mr Pizzino, involving a life tenancy and a 25 per cent interest in the proceeds of Lot 3 if it were sold by Mr Pizzino, the deed that was signed by both the applicant and Mr Pizzino that was prepared by Mr Pizzino’s solicitor is clear in its provisions.

The applicant’s assets and liabilities

[36] The applicant set out a schedule of estimated assets and liabilities, as at June 2009, in his affidavit filed on 21 September 2009 which can be summarised as:

[37] On the deceased’s death, the respondents gave the applicant the deceased’s Torana motor vehicle which the applicant had indicated that he would like to receive for sentimental reasons.  He sold it several months later for $4,000.

[38] After the deceased’s death the respondents’ solicitor sent a letter dated 26 June 2007 expressing the respondents’ view that the market rental of the property at Park Road was at least $250 per week and requesting the applicant commence payment of that amount immediately and the issue of arrears of rental for that property was also raised. The applicant remained in occupation and did not pay any rent. At the hearing the respondents treated the applicant as owing the sum of $61,570 to the estate on account of rent for Park Road.  This claim did not take account of the fact that the deceased had permitted the applicant to remain in the Park Road property, when he was not paying and, at times, was clearly unable to pay rent. It was argued on behalf of the applicant that if he truly did owe that amount to the estate, that increased his liabilities and was relevant to the quantum that he sought by way of further provision. During the course of the hearing Mr Quinn of counsel sensibly sought and obtained instructions from the respondents that they would not be pursuing the recovery of that sum showed as a loan in the assets and liabilities of the estate (exhibit 8).

[39] The applicant continues to earn about $5,000 each year from his homeopathy clients.  His employment as a house painter was terminated on 19 June 2009, but he commenced with another employer a week later and is earning $28 per hour plus GST.  Despite the personal issues that have caused turmoil in the applicant’s life, he has remained consistently in employment.

[40] The applicant prepared an estimate of his weekly expenses, as at June 2009, which was in the sum of $1,347. 

Ms Pizzino

[41] Ms Pizzino is 10 years younger than the applicant. Upon her marriage in 1987, she and her husband lived rent free in the Park Road property until they moved to their own home at Alexandra Hills.  Ms Pizzino and her husband separated after 11 years of marriage.  They sold their home and Ms Pizzino purchased a house at Coorparoo in which she resides.  Ms Pizzino has no children. Her only other real property is her one-half interest in the Stradbroke Island property.

[42] In 1999 and 2000 Ms Pizzino lent the applicant various sums totalling about $4,000 for which she was repaid by Mr Pizzino. The applicant and Ms Pizzino were substantially estranged from that time. 

[43] Ms Pizzino has worked for many years as an administration assistant in the Queensland Police Service.  She took time off work from 2005 that was required to accompany her mother to medical appointments and provide general support for her and ceased work on 2 May 2007.  After the deceased’s death, Ms Pizzino did not return to work until February 2008.

[44] Ms Pizzino suffers from lower back pain for which she requires ongoing treatment. She currently works four days per week.

[45] Ms Pizzino has not provided full details of her assets.  She deposed to having to continue to work, despite her health issues, as she had no other means of support.  That statement appears to have been made without taking into account what she will receive from the deceased’s estate.

Observations on the evidence

[46] The applicant was the only witness who was cross-examined.  That gave him an opportunity to clarify some of his affidavit evidence which appeared to be in conflict with evidence of other witnesses and otherwise supplement his written evidence. 

[47] Counsel for the respondents and the applicant’s sons sought to argue, in effect, that their clients’ affidavits were unchallenged by cross-examination and I should accept their evidence. That argument overlooks the quality of the evidence. The applicant’s sons deposed to some events that occurred before they were born or events about which they had no personal knowledge. The antipathy of the applicant’s sons towards the applicant was plain from the contents of their affidavits and must be taken into account in considering their evidence to the extent that it is relevant.  Discrepancies between the applicant’s version of some events and that of his father can be reconciled in many instances by the different perspective that each had of the same matter.  One example of that is the applicant’s visit to his father’s house on 10 January 2007.

[48] The applicant was frank in his affidavits and oral evidence about his gambling addiction and substance abuse and the stress and emotional problems that plagued him particularly between 2001 and 2007.  Despite some inaccuracies in the applicant’s recollection which is not surprising when a witness endeavours to give evidence of events that have taken place over decades, I have largely accepted the applicant’s evidence.  I also accept that the applicant is genuinely trying to minimise any relapse into gambling or substance abuse.  To the extent that it was implicit in the applicant’s evidence that he was pursuing what he considered was his share of the deceased’s estate, he has misunderstood the nature of this proceeding.

The law

[49] There was no issue between the parties about the application of the two stage process that s 41(1) of the Act requires the court to undertake, as explained in the joint judgment of Mason CJ, Deane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201, 208-209 (Singer), as approved by Gleeson CJ and Gummow and Hayne JJ in Vigolo v Bostin (2005) 221 CLR 191 at [37], [74] and [82]-[83] (Vigolo).

[50] The first stage of the process or the jurisdictional question is one of fact determined at the date of the hearing, even though it involves the making of value judgments on whether the applicant has been left without adequate provision for his proper maintenance and support, as at the date of the deceased’s death: Singer at 209-211.  The factors that will be considered on the jurisdictional question include the applicant’s financial position, the size and nature of the estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims on her bounty: Singer at 210.  The nature of the inquiry undertaken by the court on the jurisdictional question was analysed in Hills v Chalk [2008] QCA 159 at [39]-[41] (per Keane JA), [128]-[139] (per Muir JA) and [212] (per Fraser JA).

[51] Although the approach used to be different, no different tests apply to an applicant who is an adult son:  Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, 146 (Hughes) and Vigolo at [26].

[52] The way in which the size of the estate may be a significant factor in considering whether an applicant has been left without adequate provision for that applicant’s proper maintenance and support is illustrated by Re May [2000] QSC 478 at [17].

[53] If it is necessary to proceed to the second stage of the process, it involves similar considerations to the jurisdictional question (Singer at 210) and s 41(1A) of the Act is applicable.  In addition to the matters specified in s 41(1A) of the Act, the respondents and the applicant’s sons also rely on the application of s 41(2)(c) of the Act.

[54] In determining the second stage, the court exercises its discretion on whether to make an order in favour of the applicant by reference to the circumstances as they exist at the date of the order:  White v Barron (1980) 144 CLR 431, 444.

[55] The jurisdiction under provisions such as s 41(1) of the Act does not entitle the court to rewrite the will in accordance with its own ideas of fairness or justice: Hughes at 146. 

[56] Mr Morgan of counsel suggested the applicant could be characterised as a “lame duck” (Re Hatte [1946] St R Qd 1, 26) and relied on authorities (such as Alquist v ANZ Executors & Trustee Company Limited [2004] NSWSC 1116) in which the very qualities of an applicant that had persuaded the testator not to provide (or to provide minimally) for that applicant under the will could be used to justify a finding that adequate provision was not made for that applicant’s proper maintenance and support.  These authorities illustrate the application of the two stage process where an applicant has been a spendthrift, alcoholic or gambler.  The mere fact that an applicant has no assets or had a poor relationship with the testator due to past weaknesses does not preclude that applicant from endeavouring to satisfy the two stage process to obtain further provision from the testator’s estate: Hunter v Hunter (1987) 8 NSWLR 573, 581-582.

Jurisdictional question

[57] The applicant’s sons would not have been eligible to bring an application for further provision out of the deceased’s estate, if they had not been made beneficiaries under her will. The deceased chose to benefit her grandsons under her will to ensure that some of her wealth enured for the benefit of her grandsons, as she was clearly not confident that the applicant would be in a position on his death to pass assets to her grandsons. In that sense the grandsons have a competing claim with the other beneficiaries under the will.  In view of the ages and good health of the grandsons and that they have many years of opportunities before them, their claim on the bounty of their grandmother is weak in comparison to the applicant’s claim.

[58] Counsel for the applicant’s sons prepared a table purporting to be of past benefits received by the applicant from his parents. That table was incorporated into exhibit 11. That table was unhelpful. It did not take into account that the deceased and her husband conferred some benefits on both the applicant and Ms Pizzino, such as rent free accommodation when each married and a beneficial interest in the  Stradbroke Island property, and that they were endeavouring to treat the applicant and his sister equally, when the deceased gave the applicant the amount of $7,600 which reflected the additional amount that had been spent on Ms Pizzino’s wedding, compared to the applicant’s wedding. It double counts against the applicant to include as a benefit the rent that the applicant did not pay in the first few years of his marriage for residing at Emperor Street, but to treat also as a benefit given to the applicant the capital gain that he and his wife made, as a result of being able to purchase the investment property at Torrens Street during the early years of their marriage. It is not a true reflection of the transaction in December 1999 to record as a benefit to the applicant the sum of $140,000 paid by Mr Pizzino to purchase Lot 3 from the applicant, without recording the detriment that the applicant incurred by transferring Lot 3 to Mr Pizzino. This proceeding does not require a precise accounting of all monetary dealings between the parties over a lifetime. The nature of the relationship between the applicant and his parents, but particularly his mother, must be given appropriate weight, in considering the significance of benefits received by the applicant before the deceased’s death.

[59] It is submitted against the applicant that he cannot show he has been left without sufficient provision, if he requires the further provision to enable his creditors to be paid. Although the applicant’s liabilities to the Australian Taxation Office are estimated only, the total estimated liabilities at the date of hearing of around $230,000 would be met from the applicant’s one-eighth share of the deceased’s estate, without any further provision. Any further provision therefore is not for the benefit of those creditors. That the respondent had at the date of the deceased’s death existing liabilities to that extent arising from the period of his life when he was not coping with his debts or responsibilities is one of the factors that must be considered on the jurisdictional question.

[60] As at the date of her death, the deceased had been subsidising the applicant’s occupation of her Park Road property for some years.  The applicant’s need to secure accommodation after her death was within the deceased’s contemplation. The applicant’s occupation as a painter involved him in physical work that may not be practical for him to maintain long term and he was at a stage of his life where he was likely to become more vulnerable to health problems.

[61] Although the deceased’s financial and personal situation worried the deceased in the years leading up to her death, their relationship remained close. Ms Pizzino did not cause the deceased the worries that her brother did and was also in a close relationship with her mother. A compelling factor that assists the applicant’s claim on the jurisdictional question is the size of the deceased’s estate that allowed her to be generous to her daughter and to include the applicant and her grandsons under her will. The applicant’s needs, however, were significant. The fact that he had not made the best use of the financial assistance he had received from his parents in the past does not detract from the existence of his needs at the date of his mother’s death. The deceased’s concern with ensuring that her estate was not dissipated by the applicant to the detriment of her grandsons overwhelmed her consideration of the real needs of the applicant.

[62] In the context of a net estate worth about $3.6m at the date of the deceased’s death and the nature of the competing claim of the applicant’s sons, the one-eighth share for the applicant is not sufficient to allow him to meet his existing liabilities, secure accommodation and have the security of a modest capital sum as a buffer against the vicissitudes of age and ill health.

[63] The applicant has shown that the jurisdictional question should be answered in his favour as the provision made for him by the deceased was inadequate in all the circumstances for his proper maintenance and support.

Disentitling conduct

[64] The respondents submit that the applicant’s behaviour towards his parents was poor, culminating in the self-harm incident on Boxing Day 2006. This proceeding is concerned with disentitling conduct that is relevant to the applicant’s claim against his mother’s estate. Although it is no excuse for the worry that the applicant caused his mother, his conduct from 2001 onwards has to be understood in the context that he was suffering emotional problems and the stresses of a gambling addiction and substance abuse problem. Although involvement with illicit substances itself may, in some circumstances, amount to disentitling conduct (such as in Hastings v Hastings [2008] NSWSC 1310), the applicant’s circumstances and behaviour, as I have found them to be, are not sufficiently serious to be characterised as disentitling conduct.

What is adequate provision for the applicant?

[65] Because of the size of the deceased’s estate, further provision can easily be made for the applicant out of the one-half share of the estate that the deceased had earmarked for both the applicant and his sons. In the circumstances, that is the appropriate way to proceed.

[66] The size of the deceased’s estate at the date of the hearing was in the vicinity of $3.6m, before allowance for any legal costs paid out of the estate for this proceeding. The respondents had paid legal fees of about $121,000, as at the date of the hearing.

[67] The applicant sought the transfer in specie of one of the deceased’s real properties and, depending on what property was transferred, the provision of a capital sum in addition to retaining the benefit under the will, so that a total provision of approximately $1.2m to $1.3m would be received. That suggests the applicant is trying to claw back a one-third interest of the deceased’s estate which is not the basis for determining the extent of appropriate further provision. Secure accommodation for the applicant does not necessarily have to be one of the deceased’s existing properties. The most valuable of the deceased’s properties is a block of flats which generates an income stream. There is no warrant for selecting that property as the one to which the applicant should succeed.

[68] The issue was raised by the respondents and the applicant’s sons that any further provision for the applicant should secure maintenance without risking capital, such as by a right of occupation, rather than increasing the applicant’s share of the estate. In view of the opinion that I formed of the applicant’s genuine attempts to put his gambling and substance abuse problems in the past, the applicant does not need to be treated as a person who cannot manage his finances or affairs.

[69] The applicant’s needs for secure accommodation and a modest capital sum that remains after meeting his existing liabilities, in order to provide a buffer for him as he meets future uncertainties in relation to employment, health and aging, require provision for his adequate maintenance and support that is greater than the one-eighth share that is presently given to him under the will. What precise amount is appropriate is debatable. Some allowance needs to be made for the diminution in the net value of the estate for costs associated with this proceeding that are ordered or allowed to be paid from the estate. The applicant’s significant needs in comparison to his sons can be best reflected by increasing the amount he receives under the will in comparison to each of his sons. I have concluded that the discretion to make further and better provision in favour of the applicant should be exercised by increasing his share of the deceased’s estate to a one-quarter share, and diminishing his sons’ interests under the will accordingly. 

Orders

[70] The formal order that will be made to reflect my conclusion about the extent of the further and better provision in favour of the applicant is as follows:

That further and better provision for the applicant Tony John Pizzino be made out of the estate of Maria Pizzino, deceased (the deceased) by reading and construing the last will of the deceased dated 27 April 2007 as if the following sub-clauses (a) and (b) were substituted for sub-clause (a) of clause 3 of the will:

(a)As to a one-quarter share thereof to my son TONY PIZZINO for his sole use and benefit absolutely. 

(b)As to a one-quarter share thereof to my grandchildren JASON PIZZINO, ANDREW PIZZINO and MICHAEL PIZZINO as shall survive me and if more than one then in equal shares as tenants in common for their own sole use and benefit absolutely.

[71] I will deal with the question of costs after the parties have had an opportunity to make submissions in respect of the costs orders in the light of these reasons for judgment.