Gabriele v Gabriele (No 2)

[2015] VSC 165

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
CIVIL LIST

S CI 2014 01032

IN THE MATTER of PART IV of the Administration and Probate Act 1958

and

IN THE MATTER of the Will and Estate of Rosa Ranieri deceased

BETWEEN

PASQUALIE GABRIELE	Plaintiff
And
VALERIO GABRIELE (AS EXECUTOR OF THE ESTATE OF THE LATE ROSA RANIERI Deceased)	Defendant

---

JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2015 (Written Submissions)
DATE OF JUDGMENT:	28 April 2015
CASE MAY BE CITED AS:	Gabriele v Gabriele (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 165

---

TESTATOR’S FAMILY MAINTENANCE – Provision ordered in favour of plaintiff – Provision to be subject to a protective trust – Trust to be administered by Senior Master of Court.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Messer	Estate Lawyers
For the Defendant	Ms A Moore (appeared as McKenzie friend)

HIS HONOUR:

1. In this matter, I delivered reasons for judgment on 1 April 2015.[1] I concluded that, pursuant to s 91 of the Administration and Probate Act 1958, the plaintiff should be entitled to provision from the estate of the testatrix in the sum of $70,000.  In delivering judgment, I reserved three questions for further submission by the parties, namely:

   [1]Gabriele v Gabriele [2015] VSC 115.

(a)   The form in which the legacy should be paid to the plaintiff, and, in particular, whether it should be placed on a protective trust for his benefit.

(b)   Whether I should grant a stay on the order to enable the defendant a reasonable time to pay the legacy to or on behalf of the plaintiff from the assets of the estate.

(c)The question of costs.

1. After delivering judgment, I heard submissions relating to the question of costs.  I concluded that, in the circumstances of the case, costs should only be allowed on a standard basis.  At the request of the parties, I fixed that sum of costs in the amount of $30,000.

1. After ruling on the question of costs, I adjourned the matter, to enable the parties to file written submissions on the remaining two questions that I have mentioned above.  Counsel for the plaintiff filed an outline of submissions in relation to the first issue.  However, I have not received any further submissions from the defendant, or his McKenzie friend, notwithstanding communications by my associate to the McKenzie friend reminding her that the defendant had the opportunity to make submissions in relation to those two matters.  In those circumstances, I shall now proceed to deliver my reasons in relation to the remaining issues, and to make final orders in the matter.

1. In my reasons for judgment, I referred to a number of matters, relating to the circumstances of the plaintiff, which raised the issue as to whether I should direct the legacy to the plaintiff be placed on a protective trust for his benefit.  In his written outline of submissions, counsel for the plaintiff has opposed the making of such an order, and has submitted that the legacy should be paid to the plaintiff as his absolute property.  Counsel has pointed out that the plaintiff is an adult, and he is not subject to any legal disability.  While the evidence discloses that the plaintiff dissipated the net proceeds of the sale of his former matrimonial home, that occurred some time ago, in the context of the breakdown of his marriage.  There is no evidence that the plaintiff would be subject to pressures from others which might lead him to dissipate the legacy provided to him.  Accordingly, counsel submitted that the legacy ought to be paid directly to the plaintiff.

1. As I have already stated in my reasons for judgment, in determining an application under Part IV of the Administration and Probate Act 1958, the court is required to consider what provision a wise and just testator would have thought it was his or her moral duty to make in the circumstances.[2]  In the present case, the circumstances which I referred to in my previous judgment would have given a wise and just testator reason to have particular concern that, if a lump sum legacy were to be paid directly to the plaintiff, there would be a real risk that it might not be used for the benefit of the plaintiff, but rather might be wastefully dissipated.  A wise and just testatrix would have been conscious that her estate was quite small, and that any lump sum, to be provided to the plaintiff, would need to be carved out of the only asset of the estate, namely half interest in her home at Robbs Road, West Footscray, which had also been the home of the defendant for a substantial period of time.  In those circumstances, a wise and just testatrix would have been concerned that  any testamentary disposition in favour of the plaintiff be made in a manner that protected it, and the plaintiff, from being wasted.  In particular, the testatrix would have been concerned that the legacy be directed to the benefit of the plaintiff, to assist him in the impoverished circumstances in which he had found himself.

   [2]Re Allen (deceased) Allen v Manchester [1922] NZLR 218, 220–221; Bosch v Perpetual Trustees Co Ltd [1938] AC 463, 479; Blair v Blair (2004) 10 VR 69, 75–6 [13] (Chernov JA) 84 [41] (Nettle JA).

1. On the other hand, I do not consider that, applying that test, it would be necessary that the lump sum, to be paid for the benefit of the plaintiff, be tied up indefinitely in a trust.  Rather, a wise and just disposition of that amount would consist of placing it on a protective trust for a period of five years, in the hope and expectation that during that time the plaintiff would have the opportunity to get back on his feet.  After the expiration of that period, the balance of that sum should then be available to the plaintiff absolutely.

1. I shall therefore make orders to the effect that I have just described, namely, by directing that the provision that I have determined ($70,000) be paid to the Associate Justice, who is the Senior Master of the court, for the benefit of the plaintiff for a period of five years.

1. Counsel for the plaintiff did not make any submission concerning the issue of a stay.  Notwithstanding that I have not received any further submissions in respect of that matter from the defendant or the McKenzie friend, I am conscious of the need to ensure that the defendant be given a reasonable opportunity to obtain funds with which to pay the provision on behalf of the plaintiff.  I shall therefore make orders allowing for the defendant a period of three months within which to pay the provision on behalf of the plaintiff from the estate of the testatrix.

1. Accordingly, I propose to make the following orders:

(1)Pursuant to s 91 of the Administration and Probate Act 1958, provision be made out of the estate of the deceased for the plaintiff in the sum of $70,000, subject to paragraph 3 of this order.

(2)Pursuant to s 97 of the Administration and Probate Act 1958, the burden of payment of the sum of $70,000, referred to in paragraph 1 of this order, is charged on the interest of the testatrix as tenant in common of the property at 7 Robbs Road, West Footscray (Certificate of Title Volume 10077 Folio 850).

(3)Within three months of the date hereof, the defendant, as trustee of the estate, pay the said sum of $70,000 ( the ‘fund’) to the Associate Justice who is the Senior Master of the Supreme Court for the benefit of the plaintiff, to be managed for the following purposes:

(a)to invest the fund for the benefit of the plaintiff;

(b)to apply the fund for the benefit of the plaintiff, to be paid to him with any interest accrued thereon upon the plaintiff attaining the age of 52 years;

(c)in the event that the plaintiff fails to attain the age of 52 years, the balance of the fund, and any interest accrued thereon be paid or transferred to the plaintiff’s Legal Personal Representative, subject to any order of the Senior Master;

(4)The costs of the plaintiff, which are fixed in the sum of $30,000, be paid to the solicitors for the plaintiff out of the estate.

(5)There be a stay of three months in respect of provision of the costs referred to in paragraph (4) hereof.