Amicucci v Di Tullio - [2011] VSC 539

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2009 09734

AMICUCCI AND ACCAPUTO	Plaintiffs
v
MARIO DI TULLIO (who is sued as executor of the will of Tommaso Di Tullio deceased)	Defendant
- and between -
S CI 2009 9120
GIUSEPPINA VENEZIALE	Plaintiff
v
MARIO DI TULLIO (who is sued as executor of the will of Tommaso Di Tullio deceased)	Defendant

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATES OF HEARING:	31 May 2011, 12 September 2011
DATE OF JUDGMENT:	24 October 2011
CASE MAY BE CITED AS:	Amicucci and ors v Di Tullio
MEDIUM NEUTRAL CITATION:	[2011] VSC 539

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TESTATOR’S FAMILY MAINTENANCE - Applications by three daughters of testator - Only son sole beneficiary - Approach where defendant does not participate at trial -Approach were applicants agree on orders, but not facts - Whether applicants persons for whom the testator had a responsibility to make provision - Whether adequate provision made - Relevance of consent of applicants to orders - Further provision ordered-Administration and Probate Act 1958, s 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff (in proceeding S CI 2009 9734)	Mr J. Tsalanidis	Wilmoth Field Warne
For the Plaintiff (in proceeding S CI 2009 9120)	Ms. CH Sparke	Maurice Blackburn
For the Defendant	No appearance

TABLE OF CONTENTS

Proceedings......................................................................................................................................... 2

Approach to determination of the proceedings............................................................................ 4

Family history..................................................................................................................................... 7

1967-1969........................................................................................................................................ 8
1969-1987........................................................................................................................................ 9
1987-late 2003............................................................................................................................... 11
Late 2003 to January 2004........................................................................................................... 14
January 2004 to July 2006........................................................................................................... 15
July 2006 to July 2009.................................................................................................................. 17

The estate........................................................................................................................................... 17

The acquisition of 56 Green St...................................................................................................... 20

Defendant’s claim that he purchased Green St....................................................................... 20
The defendant’s earlier claim of a trust................................................................................... 25

Power to award further provision................................................................................................. 27

Assessment of s 91(4) factors.......................................................................................................... 30

Section 91(4)(e): family or other relationship.......................................................................... 30
Section 91(4)(f): obligations of the deceased to the plaintiffs and defendant.................... 31
Section 91(4)(g): size and nature of the estate......................................................................... 31
Section 91(4)(h): financial resources and needs and s 91(4)(i) any disability of the plaintiffs and the defendant; s 91(4)(j) age of the plaintiffs................................................................................. 32
Section 91(4)(k): contribution (not for adequate consideration) by the plaintiffs to the estate or welfare of the deceased or his family..................................................................................................... 35
Section 91(4)(l): any benefits previously given by the deceased......................................... 38
Section 91(4)(m): maintenance of a claimant by the deceased.............................................. 40
Section 91(4)(n): the liability of any other person to maintain the claimants..................... 40
Section 91(4)(o): the character and conduct of the applicant or any other person............. 40
Section 91(4)(p): any other matter the Court considers relevant.......................................... 40

Conclusion: jurisdiction.................................................................................................................. 41

Conclusion: further provision....................................................................................................... 43

Orders................................................................................................................................................. 46

HER HONOUR:

Proceedings

By originating motions filed 16 September 2009 (Ms Veneziale) and 23 October 2009 (Ms Amicucci and Ms Accaputo) each plaintiff seeks further provision out of the estate of the late Tommaso Di Tullio, their father. The defendant in each case is their remaining sibling, their brother Mario Di Tullio. He is sued as the executor of their father’s estate. He is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amicucci v Di Tullio

Details

AGLC: Amicucci v Di Tullio [2011] VSC 539
Case: [2011] VSC 539
Decision Date: 24 October 2011

CaseChat Overview and Summary

The case of Amicucci v Di Tullio involved three daughters of the deceased, Amicucci, seeking maintenance from the estate against their brother, Mario, the sole beneficiary. The daughters, Pina, Ergisa, and Elia, sought further provision from the estate under the Administration and Probate Act 1958. Mario did not participate in the trial, and although the daughters agreed on the orders they sought, they differed on the facts. The court had to determine if the daughters were persons for whom the testator had a responsibility to make provision, if adequate provision had already been made, and the relevance of the daughters' consent to the orders.

The court examined the testator's responsibility to provide for the daughters, noting that the testator had made significant financial contributions to their upbringing. The court also considered whether the provision made was adequate, taking into account the daughters' agreement on the orders. The relevance of the daughters' consent to the orders was addressed, with the court finding that it was not necessary for the daughters to consent to the orders as the court had the authority to make orders in the best interests of the estate and the beneficiaries.

The court ordered that further provision be made from the "net residuary estate" of one quarter to Pina and one eighth each to Ergisa and Elia. The court noted that the amount of the "net residuary estate" depended on whether any of the principal, interest, and costs in respect of the mortgages were to be borne by Mario personally, rather than the estate. The court ordered the mortgagees to provide detailed information about the mortgages to the plaintiffs after settlement and prior to an adjourned date on which orders were to be made. These orders were ex parte of the mortgagees but were subject to any application by either of them on the next occasion for discharge.

The court's orders provided for further provision to be made to the daughters from the "net residuary estate" of the testator's estate. The court's consideration of the testator's responsibility to provide for the daughters, the adequacy of the provision made, and the relevance of the daughters' consent to the orders provided a comprehensive approach to the application. The court's orders for the mortgagees to provide detailed information about the mortgages ensured that the amount of the "net residuary estate" could be accurately determined, allowing for fair and just orders to be made.

Orders

Orders of the court

I will in due course make orders to give effect to the proposed further provision from the “net residuary estate” of one quarter to Pina, and one eighth each to Ergisa and Elia. What constitutes the “net residuary estate” in turn depends on determination if any of the principal, interest and costs in respect of the mortgages is to be borne by Mario personally, rather than the estate. It is desirable in my view that any such orders be informed by detailed information as to the amount of each of those components throughout the life of each mortgage, culminating in the final figures as at settlement. The plaintiffs are not able to require that information of the mortgagees. They could, however, require it of Mario, as the executor, and he in turn can require that information as the mortgagor. I will make orders that each mortgagee provide that information to the plaintiffs after settlement and prior to an adjourned date on which orders are to be made. These orders are ex parte of the mortgagees, but will be subject to any application by either of them on the next occasion for discharge.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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