Poletti v Jones

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.