Boldi v Crozier - [2015] NSWSC 2155

Supreme Court

New South Wales

Medium Neutral Citation: Boldi v Crozier [2015] NSWSC 2155
Hearing dates: 7 December 2015
Date of orders: 07 December 2015
Decision date: 07 December 2015
Jurisdiction: Equity - Family Provision List
Before: Brereton J
Decision:
Orders made joining applicant to proceedings.

Catchwords: PROCEDURE – application for joinder of beneficiary to proceedings – Court’s general disinclination to join beneficiaries to proceedings – circumstances in which joinder warranted – greater likelihood of joinder where beneficiary receives substantial benefits likely to be disturbed by family provision order – whether applicant justified in having lost confidence in executor’s conduct of proceedings – where joinder would be at applicant’s own risk as to costs.
Legislation Cited: (NSW) Family Provision Act 1982
(NSW) Succession Act 2006
Cases Cited: Frangos v Frangos (Victorian Court of Appeal, 7 July 1995, unreported)
Re Burton (deceased) [1958] QWN 27
Re Klease [1972] QWN 44
Vasiljev v Public Trustee [1974] 2 NSWLR 497
Will of Lanfear [1940] 57 WN (NSW) 181
Category: Procedural and other rulings
Parties: Luciana Iole Boldi (plaintiff)
Terence Crozier (first defendant)
Melanie Aliberti (second defendant)
Representation:
Counsel:
S Bloont (applicant/second defendant)
P Thew (plaintiff)
R Tidswell (respondent/first defendant)
Solicitors:
Anderson Lawyers (plaintiff)
Caroll & O’Dea Lawyers (respondent/first defendant)
Palmers Solicitors (applicant/second defendant)

File Number(s): 2015/132953

Judgment (ex tempore)

HIS HONOUR: By notice of motion filed 12 October 2015, the applicant Melanie Aliberti seeks an order that she be joined as second defendant in the proceedings, which were instituted by summons filed by the plaintiff Luciana Iole Boldi against the defendant Terence Robert Crozier as executrix of the estate of the late Keith Peter Cini, the father of the applicant, claiming further provision out of the estate of the deceased who, by his last will, left a pecuniary legacy of $20,000 to the plaintiff, whom he described in the will as his partner, and the balance of his estate in equal shares to his children, being the applicant and Leanne Adam.
In proceedings under (NSW) Family Provision Act 1982 – and now (NSW) Succession Act 2006 – the proper defendant is the executor. Courts ordinarily discourage beneficiaries from defending the application [see Re Klease [1972] QWN 44; Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503]. This is because it is the particular and peculiar duty of the executor to defend the will and, in those circumstances, the intervention of anyone else to uphold it is ordinarily regarded as unnecessary [see Re Burton (deceased) [1958] QWN 27; Re Klease; Will of Lanfear [1940] 57 WN (NSW) 181 at 183]. A practical reason for this approach is to avoid the proliferation of parties and minimise the impact of costs on the estate. Thus, courts not infrequently decline to award costs to any beneficiary who has unnecessarily become a party to the proceedings.
Nonetheless, there are circumstances in which a beneficiary will be joined as a defendant. Obvious cases include where the executor is an applicant for family provision and there is no…

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 Boldi v Crozier

Details

AGLC: Boldi v Crozier [2015] NSWSC 2155
Case: [2015] NSWSC 2155
Decision Date: 07 December 2015

CaseChat Overview and Summary

In the matter of Boldi v Crozier, the court was called upon to consider an application for the joinder of a beneficiary to proceedings concerning the estate of a deceased person. The applicant, Boldi, sought to add the beneficiary to the proceedings to challenge the executor’s conduct of the estate, particularly regarding a family provision order. The dispute centred around whether the beneficiary had received substantial benefits from the estate that might be affected by the family provision order, and if Boldi's loss of confidence in the executor's conduct was justified. The court's role was to determine whether the circumstances warranted the joinder of the beneficiary and whether such a joinder would be at Boldi’s own risk concerning costs.

The court examined the legal issues pertaining to the joinder of beneficiaries to estate proceedings. Key considerations included the general disinclination of courts to join beneficiaries unless there are compelling reasons, particularly where the beneficiary’s substantial benefits from the estate are at risk of being disturbed by a family provision order. Additionally, the court assessed whether Boldi's loss of confidence in the executor's conduct was reasonable and justified the application for joinder. The court also needed to weigh whether the applicant would bear the risk of costs if the application was unsuccessful.

In reaching its decision, the court noted that while it generally disinclines to join beneficiaries to estate proceedings, there are exceptional circumstances where such joinder may be warranted. The court found that the beneficiary in this case had received substantial benefits from the estate, and there was a significant likelihood that these benefits would be affected by the family provision order. The court also considered that Boldi had a reasonable basis for losing confidence in the executor's conduct, which justified the application for joinder. However, the court emphasised that any joinder would be at Boldi’s own risk as to costs. The court concluded that the circumstances warranted the joinder of the beneficiary and ordered that the beneficiary be joined to the proceedings, with Boldi to bear the risk of costs if the application was unsuccessful.

Orders