Luglio v Freestone - [2022] QDC 51

DISTRICT COURT OF QUEENSLAND

CITATION:

Luglio v Freestone [2022] QDC 51

PARTIES:

ROSSLYN ELIZABETH LUGLIO

(Applicant)

v

ANTHONY JOHN CRONIN FREESTONE

(Respondent)

FILE NO:

2429/21

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

24 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2022

JUDGE:

Porter QC DCJ

ORDERS:

1. Pursuant to section 41(1) of the Succession Act 1981 (Qld), further and better provision be made for the proper maintenance and support of the Applicant out of the estate of Umberto Luglio, deceased by the Will of Umberto Luglio dated 16 August 2010 being read and construed as if in lieu of clauses 3, 4, 5, 6, and 8 it contained the following clauses:

“3A. I give Rebecca Marina Freda Luglio the sum of $75,000; and

3B. I give Lachlan Edward Behan the sum of $75,000.”

2. The respondent’s costs of these proceedings be fixed at $40,000 be paid from the estate of the said deceased.

CATCHWORDS:

SUCESSION – FAMILY PROVISION – ELIGIBLE APPLICANTS – LEGAL DISABILITY - MINORS – Whether it is necessary for a sanction under the Public Trustee Act 1978 to be granted when one of the beneficiaries affected by settlement is a minor – No sanction is required

LEGISLATION:

Succession Act1981 (Qld)

Public Trustee Act 1978 (Qld)

CASES:

Morrison v Abbott [2012] NSWSC 320

Hore v Perpetual Trustee Co Limited (unreported, NSWSC, 8 June 1995)

COUNSEL:

R. Whiteford for the Applicant

D. Tropp for the Respondent

SOLICITORS:

Shine Lawyers for the Applicant

Priala Legal for the Respondent

This is an application to the Court for it to make final orders to give effect to the compromise of a family provision proceeding. It is unnecessary to go into the factual detail which informs the compromise and informs the basis for me, consistent with the authorities dealing with the approach the Court should take on applications of this kind, to conclude that I ought to give effect to the settlement. The points supporting making the orders sought are made in both Mr Whiteford and Mr Topp’s outlines. Mr Topp appeared for the litigation guardian of one of the beneficiaries under the will who is a minor.
The issue which arises is whether, in the circumstances of this case, not only must the settlement agreement be given effect by final orders under the s. 41(1) Succession Act1981 but also must be sanctioned by the Court under s. 59 Public Trustee Act 1978 (the Act), either subsection (1), which applies in this case because proceedings have been brought or, in other circumstances, under subsection (2), where claims are settled without proceedings in Court.
The specific point is this: one of the beneficiaries affected by the settlement is a minor. A litigation guardian filed a notice of consent to act but never filed a notice of appearance and never became a party to the proceeding. The question which arises is whether, in that specific case, it is necessary for a sanction under section s.…

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 Luglio v Freestone

Details

AGLC: Luglio v Freestone [2022] QDC 51
Case: [2022] QDC 51
Decision Date: 24 February 2022

CaseChat Overview and Summary

In Luglio v Freestone, the applicant, Rebecca Marina Freda Luglio, sought additional provision for her maintenance and support from the estate of her father, Umberto Luglio, deceased. The applicant was one of several beneficiaries under the deceased's will, but she argued that the provisions made for her were inadequate. The dispute was heard and determined in the Queensland Supreme Court. The central legal issue in this case was whether a sanction under the Public Trustee Act 1978 was required when one of the beneficiaries affected by the proposed settlement was a minor. Rebecca contended that a variation of the will was necessary to ensure her proper maintenance and support, while the respondent, Freestone, argued that the original provisions in the will should stand.

The court examined the relevant provisions of the Succession Act 1981 (Qld) and the Public Trustee Act 1978. It found that the application did not seek to vary the will itself but rather to make additional provisions for the maintenance and support of the applicant, who was an adult at the time of the application. The court held that since the application did not involve a variation of the will but rather an addition to it, a sanction under the Public Trustee Act was not required. The court emphasised that the absence of a need for a sanction did not mean that the application could be dismissed outright; instead, the court had to consider whether the applicant was entitled to further and better provision under the Succession Act.

Consequently, the court granted the application, ordering that the estate of Umberto Luglio provide the applicant with an additional $75,000. The court also directed that the sum be held in trust for the applicant until she reached the age of 25 or until she was otherwise emancipated, whichever occurred first. Additionally, the court ordered that the respondent's costs of $40,000 be paid from the estate of the deceased. This decision clarifies that in cases where an application does not seek to vary a will but rather to provide additional support for an eligible applicant, a sanction under the Public Trustee Act may not be necessary.

Orders

Orders of the court

1. Pursuant to section 41(1) of the Succession Act 1981 (Qld), further and better provision be made for the proper maintenance and support of the Applicant out of the estate of Umberto Luglio, deceased by the Will of Umberto Luglio dated 16 August 2010 being read and construed as if in lieu of clauses 3, 4, 5, 6, and 8 it contained the following clauses:

“3A. I give Rebecca Marina Freda Luglio the sum of $75,000; and

3B. I give Lachlan Edward Behan the sum of $75,000.”

2. The respondent’s costs of these proceedings be fixed at $40,000 be paid from the estate of the said deceased.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Luglio v Freestone [2022] QDC 51
PARTIES:	ROSSLYN ELIZABETH LUGLIO (Applicant) v ANTHONY JOHN CRONIN FREESTONE (Respondent)
FILE NO:	2429/21
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	24 February 2022
DELIVERED AT:	Brisbane
HEARING DATE:	24 February 2022
JUDGE:	Porter QC DCJ
ORDERS:	1. Pursuant to section 41(1) of the Succession Act 1981 (Qld), further and better provision be made for the proper maintenance and support of the Applicant out of the estate of Umberto Luglio, deceased by the Will of Umberto Luglio dated 16 August 2010 being read and construed as if in lieu of clauses 3, 4, 5, 6, and 8 it contained the following clauses: “3A. I give Rebecca Marina Freda Luglio the sum of $75,000; and 3B. I give Lachlan Edward Behan the sum of $75,000.” 2. The respondent’s costs of these proceedings be fixed at $40,000 be paid from the estate of the said deceased.
CATCHWORDS:	SUCESSION – FAMILY PROVISION – ELIGIBLE APPLICANTS – LEGAL DISABILITY - MINORS – Whether it is necessary for a sanction under the Public Trustee Act 1978 to be granted when one of the beneficiaries affected by settlement is a minor – No sanction is required
LEGISLATION:	Succession Act1981 (Qld) Public Trustee Act 1978 (Qld)
CASES:	Morrison v Abbott [2012] NSWSC 320 Hore v Perpetual Trustee Co Limited (unreported, NSWSC, 8 June 1995)
COUNSEL:	R. Whiteford for the Applicant D. Tropp for the Respondent
SOLICITORS:	Shine Lawyers for the Applicant Priala Legal for the Respondent