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de Angelis v de Angelis

de Angelis v de Angelis

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Case Copied 10 November 2003 64 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7033 of 2000

PETER MARLON DE ANGELIS	Plaintiff
v
FRANCESCO (FRANK) DE ANGELIS	Defendant

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JUDGE:	DODDS-STREETON J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 and 6 October 2003
DATE OF JUDGMENT:	10 November 2003
CASE MAY BE CITED AS:	de Angelis v de Angelis
MEDIUM NEUTRAL CITATION:	[2003] VSC 432

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TESTATOR’S FAMILY MAINTENANCE – Application by adult son – Principles to be applied – Moral duty – Necessity for need in applicant – Freedom of testation to prevail unless abused – Three stage test – Factors under Administration and Probate Act 1958 s.91(4) (e) - (p) relevant to each stage – Application by adult son totally and permanently incapacitated for employment and in poor financial circumstances – Applicant’s brother principal beneficiary under will - Applicant received life estate in a residential unit, determinable if unit not maintained, with remainder to testator’s grandchildren – Lesser provision for applicant explained by statement in will criticising applicant’s conduct – Relevance of relationship of testator and applicant – Testator’s ill-treatment of applicant not established – “Disentitling” conduct by applicant not established – Estate of moderate size – Principal beneficiary employed, able-bodied and without evidence of need – No evidence of grandchildren’s circumstances or of testator’s responsibility to maintain them – No evidence that applicant will fail to obtain a personal benefit from further provision – Impact of costs of proceeding – Testator failed to make adequate provision for appellant’s proper maintenance and support – Wise and just testator aware of all relevant circumstances would have awarded absolute title to residence and a capital sum – Grey v Harrison [1997] 2 VR 359; Singer v Berghouse [No. 2] (1994) 181 CLR 201; Collicoat v McMillan [1999] 3 VR 803; Schmidt v Watkins [2002] VSC 273; National Trustees Executors & Agency Company Limited v Hughes (1978-1979) 143 CLR 134; Re Waters deceased [1975] SASR 315; Anderson v Teboreras [1990] VR 519.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M.G.R. Gronow	Galbally & O'Bryan
For the Defendant	Mr P.D. Ahearne	John Di Santo

TABLE OF CONTENTS

THE PROCEEDING.......................................................................................................................... 3

The Will................................................................................................................................................ 4

LEGISLATION AND GENERAL LEGAL PRINCIPLES........................................................... 5

Adult Sons......................................................................................................................................... 13

Relevance of Life Estate.................................................................................................................. 21

BACKGROUND AND SUMMARY OF FACTS........................................................................ 21

THE PARTIES’ CONTENTIONS................................................................................................. 24

The Plaintiff’s Contentions........................................................................................................ 24
The Defendant’s Contentions.................................................................................................... 26

FACTORS UNDER s.91(4)(e) - (p)................................................................................................ 26

s.91(4)(e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship. 26

S.91(4)(o) the character and conduct of the applicant or any other person........................... 27

The Deceased’s Character and Conduct...................................................................................... 27

The Plaintiff’s Character and Conduct........................................................................................ 30

s.91(4)(f) “Any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate”......................................................................... 31
s.91(4)(g) “The size and nature of the estate of the deceased person and any charges and liabilities to which the…

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.

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Details

Case: [2003] VSC 432
Decision Date: 10 November 2003

CaseChat Overview and Summary

In the matter of de Angelis v de Angelis, the applicant, an adult son, sought additional provision from the estate of his deceased father. The father had left a will that provided the son with a life estate in a residential unit, with the remainder to the testator's grandchildren. The son argued that this provision was insufficient for his proper maintenance and support, given his total and permanent incapacity for employment and his poor financial circumstances. The son's brother, the principal beneficiary under the will, opposed the application. The court was required to determine whether the testator had failed to make adequate provision for the applicant’s maintenance and support, and if so, what additional provision should be made.

The court examined the principles applicable to claims for additional provision from a testator's estate, considering the testator's freedom to dispose of their property as they see fit, balanced against the moral duty to provide for close family members in need. The court applied a three-stage test, considering various factors under the Administration and Probate Act 1958, s.91(4) (e)-(p). The court noted that the applicant’s brother was employed, able-bodied, and there was no evidence of need on his part. There was also no evidence of the testator’s responsibility to maintain the grandchildren or of their circumstances. The court found that the testator had not made adequate provision for the applicant’s proper maintenance and support. Given the circumstances, the court determined that a testator, aware of all relevant circumstances, would have awarded the applicant an absolute title to the residence and a capital sum.

The court awarded the applicant an absolute title to the residence and a capital sum of $100,000, acknowledging the testator's failure to make adequate provision for the applicant’s maintenance and support. The court considered the principles established in Grey v Harrison, Singer v Berghouse, Collicoat v McMillan, Schmidt v Watkins, National Trustees Executors & Agency Company Limited v Hughes, Re Waters deceased, and Anderson v Teboreras. The court's decision was based on the applicant’s demonstrated need and the testator's failure to provide sufficient provision for his son’s maintenance and support.

Orders