Poletti v Jones

Case [2015] NSWCA 107


Court of Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Poletti v Jones [2015] NSWCA 107
Hearing dates:11 and 12 February 2015
Decision date: 27 April 2015
Before: Basten JA at [1];
Emmett JA at [83];
Leeming JA at [94]
Decision:

(1)Allow the appeal and set aside order (1) made by the trial judge on 4 June 2014.

(2)In place of the order for provision made below, order that each of Doriana Mary Jones and Patrizia Mary Caterina Becker have a 15% share of the net estate of the deceased, John Ubaldo Poletti, their respective debts to the estate having been extinguished.

(3)The provision provided under order (2) be provided out of the 85% share conferred by the testator’s will on Mauro Giuseppe Poletti.

(4)With respect to the costs of the appeal, the costs of Mauro Giuseppe Poletti, Marco Poletti, Doriana Mary Jones and Patrizia Mary Caterina Becker are to be assessed on an indemnity basis and paid from the estate, provided that the costs incurred by Marco Poletti are limited to the costs of his motion and intervention by way of written submissions following the appeal, allowed in so far as they comply with the order for joinder made by this Court.
Catchwords:

APPEAL – procedure – appellant (beneficiary and executor) challenged order in favour of estranged daughters – appellant received bulk of the estate – remaining beneficiary not joined – application for joinder on appeal – intervener’s interest under the will reduced by the provision so as to be less than the provision made to each daughter – intervener’s needs similar to those of estranged daughters – whether provision order should be varied to allow equal shares

SUCCESSION – family provision – provision ordered in favour of estranged daughters – whether trial judge erred in not applying a two-step approach under the Succession Act 2006 (NSW), s 59 – whether lengthy estrangement disentitled daughters from relief – whether the conduct of the testator and the appellant relevant – whether daughters in need

SUCCESSION – family provision – competing claims to estate – beneficiary relying on charitable contributions to the deceased’s estate and well-being – whether use of family name in appellant’s new business, receiving services from testator and obtaining tax deductions for contributions constituted benefits disentitling him from a moral claim on the estate
Legislation Cited: Succession Act 2006 (NSW), ss 59, 60, 65
Uniform Civil Procedure Rules 2005 (NSW), r 42.25
Cases Cited: Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656
Sammut v Kleemann [2012] NSWSC 1030
Vigolo v Bostin [2005] HCA 11; 221 CLR 191
Category:Principal judgment
Parties: Mauro Giuseppe Poletti (Appellant)
Doriana Mary Jones (First Respondent)
Patrizia Mary Caterina Becker (Second Respondent)
Marco Poletti (Third Respondent)
Representation:

Counsel:
Dr Birch SC/Mr P Silver (Appellant)
Mr L J Ellison SC (First and Second Respondents)
Ms E Elbourne (Third Respondent)

Solicitors:
Willis & Bowring (Appellant)
L Rundle & Co (First and Second Respondents)
Brander Smith McKnight (Third…

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Poletti v Jones [2015] NSWCA 107
Case
[2015] NSWCA 107
Decision Date

CaseChat Overview and Summary

The appeal concerned an application for provision from the estate of John Ubaldo Poletti, brought by his estranged daughters, Doriana Mary Jones and Patrizia Mary Caterina Becker, against the executor and primary beneficiary, Mauro Giuseppe Poletti. The primary dispute revolved around the adequacy of the provision ordered by the trial judge in favour of the daughters, which the appellant argued was excessive, particularly in light of his own substantial entitlement under the will and the circumstances of the estrangement.

The Court of Appeal was required to determine whether the trial judge erred in the exercise of their discretion under the *Succession Act 2006* (NSW). Specifically, the court considered whether a two-step approach, as contemplated by section 59 of the Act, had been correctly applied, whether the lengthy estrangement between the deceased and his daughters disentitled them from receiving provision, and the relevance of the conduct of both the testator and the appellant. The court also had to assess whether the daughters were in need of provision and whether the appellant's own claims on the estate, including benefits received from the deceased and contributions made, were such as to disentitle him from a moral claim.

The Court of Appeal allowed the appeal, setting aside the trial judge's original order. The court reasoned that the provision made by the trial judge was not appropriate, particularly in light of the competing claims and the overall distribution of the estate. The court found that the daughters were entitled to provision, but that the amount ordered should be adjusted to reflect a more equitable distribution. The court also addressed the appellant's conduct and the benefits he had received, concluding that while these factors were relevant, they did not wholly disentitle him from a claim.

In lieu of the trial judge's order, the Court of Appeal ordered that each daughter receive a 15% share of the net estate, with their respective debts to the estate being extinguished. This provision was to be satisfied from the 85% share that the testator's will had conferred upon Mauro Giuseppe Poletti. The court also made orders regarding the costs of the appeal, directing that the costs of the appellant, the respondents (daughters), and an intervener (Marco Poletti) be assessed on an indemnity basis and paid from the estate, with specific limitations on the intervener's costs.

Orders

Orders of the court

(1)Allow the appeal and set aside order (1) made by the trial judge on 4 June 2014.

(2)In place of the order for provision made below, order that each of Doriana Mary Jones and Patrizia Mary Caterina Becker have a 15% share of the net estate of the deceased, John Ubaldo Poletti, their respective debts to the estate having been extinguished.

(3)The provision provided under order (2) be provided out of the 85% share conferred by the testator’s will on Mauro Giuseppe Poletti.

(4)With respect to the costs of the appeal, the costs of Mauro Giuseppe Poletti, Marco Poletti, Doriana Mary Jones and Patrizia Mary Caterina Becker are to be assessed on an indemnity basis and paid from the estate, provided that the costs incurred by Marco Poletti are limited to the costs of his motion and intervention by way of written submissions following the appeal, allowed in so far as they comply with the order for joinder made by this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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