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
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…
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.
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AGLC
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.