Jones v Alessi - [2018] SASC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
JONES v ALESSI & ORS
[2018] SASC 110
Judgment of Judge Bochner a Master of the Supreme Court
10 August 2018
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE
Inheritance (Family Provision) Act 1972 (SA) s 7 , referred to.
Singer v Berghouse (No 2) (1994) 181 CLR 201; Tiburzi v Butler [2017] SASCFC 89; Carter v Brine [2015] SASC 204; In the Estate of Puckridge Deceased (1978) 20 SASR 72, considered.

JONES v ALESSI & ORS
[2018] SASC 110

JUDGE BOCHNER. The plaintiff brings an application, pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (the Act) for further provision from the estate of her late mother (the deceased or Mrs Alessi).
The deceased died on 21 February 2016, leaving a will dated 28 August 2009. Probate was granted in relation to this will on 24 January 2017.
Background
By her will, the deceased, who was a widow at the time of her death, left a legacy of $20,000 to the plaintiff with the balance of her estate to be divided between the plaintiff’s two brothers. The main asset in the estate is a residential property situated at Lockleys, with a value of approximately $640,000. The net estate is worth in total around $660,000.[1]
[1] See P2.
Clause 5 of the deceased’s will provided:
I give to my daughter Filippa Alessi the sum of TWENTY THOUSAND DOLLARS [$20,000.00]. I expressly limit my bequest / gift to my aforesaid daughter Filippa Alessi on the basis that I have had little contact, care or support from my aforesaid daughter Filippa Alessi over the last several years, and in particular, the death of my late husband some eights months ago. I have had no contact with my aforesaid daughter Filippa Alessi since the death of my late husband. I have attempted to telephone her on a number of occasions without any success of communicating with her. She has not provided for me in any way by providing care or support. My aforesaid daughter has shown a complete disinterest in me. For these reasons I further say that should my aforesaid daughter Filippa Alessi make any claim against my estate under the provisions of the Inheritance (Family Provision) Act or otherwise such claim should fail and she should be limited to the monies provided herewith before in this my Will.
The plaintiff’s evidence
The plaintiff’s evidence was primarily by way of affidavit, supplemented by oral evidence. Her husband, Mr John Jones, also gave evidence. In the main, the evidence given by the plaintiff was poor; her evidence at times was contradictory, hard to understand and confused. Mr Jones I found to be a reliable witness, whose evidence was generally given in a consistent and measured manner.
The personal circumstances of the plaintiff
The plaintiff was born on 14 March 1948 in Italy, and is the youngest of three siblings. In 1952, her father, Rosario Alessi (Mr Alessi)…

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 Jones v Alessi

Details

AGLC: Jones v Alessi [2018] SASC 110
Case: [2018] SASC 110
Decision Date: 10 August 2018

CaseChat Overview and Summary

In the Supreme Court of South Australia, the plaintiff, Filippa Alessi, sought to have the court set aside a clause in the will of her deceased mother, who passed away on 21 February 2016, on the basis that it failed to provide for her adequate and proper maintenance. The deceased left a will dated 28 August 2009, which was admitted to probate on 24 January 2017. The will provided for a bequest of $20,000 to the plaintiff, with the balance of the estate to be divided between her two brothers. The primary asset in the estate was a residential property in Lockleys, with an approximate value of $640,000. The net estate totalled around $660,000. Clause 5 of the will contained a statement of reasons explaining that the deceased had limited contact, care, or support from the plaintiff over the previous several years, particularly after the death of the deceased’s husband. The deceased also stated that she had made attempts to contact the plaintiff without success, and that the plaintiff had shown a complete disinterest in her.

The court was required to determine whether the deceased's will failed to make proper and adequate provision for the plaintiff's maintenance, in accordance with section 46(1) of the Inheritance (Family Provision) Act 1964 (SA). The plaintiff argued that the clause in the will was invalid and that the court should disregard it, asserting that the deceased had failed to make proper and adequate provision for her maintenance. The court considered the evidence provided by the plaintiff and her husband, as well as the reasons outlined in the will, in order to determine whether the clause was valid. The court examined the deceased's reasons for limiting the bequest to the plaintiff and assessed whether those reasons were justified and whether the provision made for the plaintiff's maintenance was adequate. The court found that the deceased had provided sufficient reasons for limiting the bequest, and that the provision made for the plaintiff's maintenance was adequate. Therefore, the clause in the will was valid and the court did not set it aside.

The court dismissed the plaintiff's application, finding that the deceased had made proper and adequate provision for the plaintiff's maintenance, and that the clause in the will was valid. The court ordered that the plaintiff take nothing by her originating application.

Orders

Orders of the court

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Background

Background to the litigation

The deceased died on 21 February 2016, leaving a will dated 28 August 2009. Probate was granted in relation to this will on 24 January 2017.Background By her will, the deceased, who was a widow at the time of her death, left a legacy of $20,000 to the plaintiff with the balance of her estate to be divided between the plaintiff’s two brothers. The main asset in the estate is a residential property situated at Lockleys, with a value of approximately $640,000. The net estate is worth in total around $660,000.[1][1] See P2. Clause 5 of the deceased’s will provided:I give to my daughter Filippa Alessi the sum of TWENTY THOUSAND DOLLARS [$20,000.00]. I expressly limit my bequest / gift to my aforesaid daughter Filippa Alessi on the basis that I have had little contact, care or support from my aforesaid daughter Filippa Alessi over the last several years, and in particular, the death of my late husband some eights months ago. I have had no contact with my aforesaid daughter Filippa Alessi since the death of my late husband. I have attempted to telephone her on a number of occasions without any success of communicating with her. She has not provided for me in any way by providing care or support. My aforesaid daughter has shown a complete disinterest in me. For these reasons I further say that should my aforesaid daughter Filippa Alessi make any claim against my estate under the provisions of the Inheritance (Family Provision) Act or otherwise such claim should fail and she should be limited to the monies provided herewith before in this my Will.The plaintiff’s evidence The plaintiff’s evidence was primarily by way of affidavit, supplemented by oral evidence. Her husband, Mr John Jones, also gave evidence. In the main, the evidence given by the plaintiff was poor; her evidence at times was contradictory, hard to understand and confused. Mr Jones I found to be a reliable witness, whose evidence was generally given in a consistent and measured manner.The personal circumstances of the plaintiff The plaintiff was born on 14 March 1948 in Italy, and is the youngest of three siblings. In 1952, her father, Rosario Alessi (Mr Alessi) moved to Australia, with the intention of saving money to allow him to return to Italy and build a house for his family. Ultimately, it appears that the deceased emigrated to Australia with her three children to join Mr Alessi in 1958. It seems that the family lived in the Grampians for a few years, and then moved to Renmark, in South Australia. The plaintiff’s evidence as to her early life in Australia was scant and at times confusing. However, it appears that she worked for her parents picking fruit as a child and had limited education:Well we were working for my parents when I was younger. Don't forget we never went to school, we hardly hardly went to school, we never went to high school none of us, we were always working with mum and dad and we were forced to go to work and the school was just nothing, only when they felt like it.[2][2] T42.34-T43.1.

Evidence

Evidence Before The Court

Clause 5 of the deceased’s will provided:I give to my daughter Filippa Alessi the sum of TWENTY THOUSAND DOLLARS [$20,000.00]. I expressly limit my bequest / gift to my aforesaid daughter Filippa Alessi on the basis that I have had little contact, care or support from my aforesaid daughter Filippa Alessi over the last several years, and in particular, the death of my late husband some eights months ago. I have had no contact with my aforesaid daughter Filippa Alessi since the death of my late husband. I have attempted to telephone her on a number of occasions without any success of communicating with her. She has not provided for me in any way by providing care or support. My aforesaid daughter has shown a complete disinterest in me. For these reasons I further say that should my aforesaid daughter Filippa Alessi make any claim against my estate under the provisions of the Inheritance (Family Provision) Act or otherwise such claim should fail and she should be limited to the monies provided herewith before in this my Will.The plaintiff’s evidence The plaintiff’s evidence was primarily by way of affidavit, supplemented by oral evidence. Her husband, Mr John Jones, also gave evidence. In the main, the evidence given by the plaintiff was poor; her evidence at times was contradictory, hard to understand and confused. Mr Jones I found to be a reliable witness, whose evidence was generally given in a consistent and measured manner.The personal circumstances of the plaintiff The plaintiff was born on 14 March 1948 in Italy, and is the youngest of three siblings. In 1952, her father, Rosario Alessi (Mr Alessi) moved to Australia, with the intention of saving money to allow him to return to Italy and build a house for his family. Ultimately, it appears that the deceased emigrated to Australia with her three children to join Mr Alessi in 1958. It seems that the family lived in the Grampians for a few years, and then moved to Renmark, in South Australia. The plaintiff’s evidence as to her early life in Australia was scant and at times confusing. However, it appears that she worked for her parents picking fruit as a child and had limited education:Well we were working for my parents when I was younger. Don't forget we never went to school, we hardly hardly went to school, we never went to high school none of us, we were always working with mum and dad and we were forced to go to work and the school was just nothing, only when they felt like it.[2][2] T42.34-T43.1. In 1964, the plaintiff moved back to Italy with her parents. Her brothers stayed in Australia. In 1966, while still in Italy, the plaintiff married her husband, Rocco Bella. Their first child, Elena was born on 4 June 1967. In late 1967, the plaintiff, Mr Bella and Elena moved back to Australia. When they first arrived in Australia, the plaintiff and her family lived with her brothers in Renmark. Not long after the plaintiff’s return to Renmark, her parents also returned to Australia. They bought a fruit block in Renmark and the plaintiff and her family went to live with them.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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