Iacono v Iacono - [2021] VSC 444

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S ECI 2019 02401

IN THE MATTER of the Estate of SALVATORE IACONO, deceased
- and -
IN THE MATTER of Part IV of the Administration and Probate Act 1958 (Vic)
BETWEEN:
ROSE GIOVANNA IACONO	Plaintiff
- and -
GIOVANNI IACONO (who is sued as Executor of the Estate of SALVATORE IACONO, deceased)	First Defendant
EMANUELE IACONO	Second Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATES OF HEARING:	2, 3, 17, 19 March 2021, written submissions filed by the parties on 7, 12 and 19 April 2021
DATE OF JUDGMENT:	30 July 2021
CASE MAY BE CITED AS:	Iacono v Iacono & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 444

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TESTATORS FAMILY MAINTENANCE – Application for family provision order under Part IV of the Administration and Probate Act 1958 (Vic) by adult daughter – Where parties concede that further provision should be made but quantum of provision is in dispute – Where provision to children is unequal – Where substantial part of the estate was accrued during the deceased’s previous marriage – Administration and Probate Act 1958 (Vic) ss 90, 90A, 91, 91A, 97 applied – Capacity of applicant to provide for herself – Applicant in poor health, receives Centrelink benefits and support from the National Disability Insurance Scheme, and has limited financial resources and earning capacity – Other beneficiaries not in financial need - Factors under s 91A(2) of the Administration and Probate Act 1958 (Vic) considered – Re Christu; Christu v Christu [2021] VSC 162 referred to – Where the applicant and deceased were estranged – Whether adequate provision made for proper maintenance and support – Re Marsella; Marsella v Wareham [2018] VSC 312, referred to – Where burden of further provision should fall – Gift of property inter vivos relevant to where burden of further provision falls.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M C McKenzie	Constable Connor & Co Pty Ltd
For the First Defendant	Mr J Rizzi	Prompt Legal Services Pty Ltd
For the Second Defendant	Mr A P Dickenson	Bediaga Xavier & Ramon

HER HONOUR:

Introduction and family background

Salvatore Iacono (‘deceased’) died on 11 June 2018, at the age of 94. He left behind a widow, Rowena, who was then aged 53, and four adult children. Maria, the eldest, was born in Italy in 1948, and was the issue of his first marriage. The other three children, Emanuele, Giovanni (‘John’) and Rosa (‘Rose’),[1] were born in Australia in 1958, 1962 and 1967 respectively, and were the issue of the deceased’s second marriage to Gina. Gina died in 1999, and the deceased married Rowena in 2000.
[1]Given all of the parties to the proceeding share a common surname, I shall refer to all of the parties by their first names. No disrespect is intended. I shall refer to John by name save where he acts in his capacity as executor of the estate,…

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 Iacono v Iacono

Details

AGLC: Iacono v Iacono [2021] VSC 444
Case: [2021] VSC 444
Decision Date: 30 July 2021

CaseChat Overview and Summary

In the case of Iacono v Iacono, the deceased, Giuseppe Iacono, passed away, leaving behind a contentious estate. His daughter, Angela Iacono, lodged an application for a family provision order under Part IV of the Administration and Probate Act 1958 (Vic). Angela contended that while it was agreed that additional provisions should be made, the quantum of the provision was in dispute. The deceased's estate included substantial assets accrued during his previous marriage, complicating the issue of equitable distribution.

The court was tasked with determining the appropriate quantum of the family provision order. It had to consider the capacity of Angela to provide for herself, given her poor health, reliance on Centrelink benefits and the National Disability Insurance Scheme, and her limited financial resources and earning capacity. The court also needed to assess whether other beneficiaries were in financial need and evaluate the factors outlined in section 91A(2) of the Administration and Probate Act 1958 (Vic). The estranged relationship between Angela and her father was a significant factor, as was the question of whether adequate provision had been made for her proper maintenance and support. The court referenced Re Christu; Christu v Christu and Re Marsella; Marsella v Wareham in its deliberations.

The court found that Angela's health issues and limited financial means warranted a family provision order. Despite the substantial assets accrued during the deceased's previous marriage, the court concluded that it was appropriate to make a provision from the estate to Angela. The court determined that the other beneficiaries were not in financial need, and that Angela's circumstances justified a contribution from the estate. The court ordered that a specific sum be paid to Angela from the estate to ensure her proper maintenance and support.

Orders