Barbanera v Barbabera Anors: Estate of the late Antonio Barbanera [2017] NSWSC 357

Barbanera v Barbabera Anors: Estate of the late Antonio Barbanera [2017] NSWSC 357

John Barbanera is the oldest son of Antonio Barbanera and Maria Barbanera. Antonio died on 3 1 October 2014 and Maria November 2009.

John has three younger siblings Nunzia, Peter and Angela. Angela died in April 2015 and is survived by her husband Nick and their only child Giuliana.

John was excluded from his father’s will and he brought proceedings under the succession act for provision out of his late father’s estate, Greg Walsh acted on his behalf.

The hearing was heard and determined by His Honour Justice Slattery of the Supreme Court NSW Sydney.

His Honour heard evidence over two days, 12 and 13 December 2016. There is no doubting, that the proceedings were bound to involve a recounting of difficult emotional issues involving the lives of John and his siblings.

John over many years was an extremely hard worker and quite successful businessman. He was married to Pina and they have two children.

His Honour has set out in detail in his judgement the history of home life in the family home in Haberfield between 1976 to 1991.

His Honour observed that John as the first born in the family regarded himself as having a solemn duty and entitlement and as such this caused him to be regarded “the role is giving him authority to control the personal lives of his sibling’s particular of his sisters”. His Honour details a number of life events which had significantly impacted upon John and his siblings over so many years.

John’s late father attached a statutory declaration his will dated 23 April 2008. His Honour referred to the contents of that Statutory Declaration and judgement.

His honour referred to other events including visits to his late mother before her death in 2009 and what occurred at his mother’s funeral in November 2009.

Justice Slattery noted the deletion of any reference to John from Maria’s funeral documents and made a finding that he did not accept that there was any reasonable basis for Peter and Nancy to fear what John might do at his mother’s funeral.

At his father’s funeral once again there was no mention of John and this clearly the impact of public humiliation to John His Honour made reference to the back cover of the mass book for his late father’s funeral omitting to making reference to John. The exclusion of John was noted by His Honour as follows:

“caro ed amato marito della defunta Maria, adorato padre e suoero di Angela e Nick Bouyioukos, Nancy e Antonio Brunetti, Peter e Maryanna Barbanera, orgoglioso nono di Giuliana, Antonia, Leonardo, Donatella, Dante. …”

Justice Slattery set out the applicable legal principals in particular that of Singer v Berghouse (No.2) (1994) 181 CLR 201. His Honour then examined in detail John’s financial and personal position. His net position was $5076502.00.

His Honour also referred in detail to the financial position to John’s siblings and the health problems of Angela’s husband.

His Honour made a finding that John’s summons should be dismissed subject to further argument as to what costs orders are conveyed.

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