Potter v Bellifemini

Case [2019] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

POTTER & ANOR v BELLIFEMINI & ANOR

[2019] SASC 120

Judgment of Judge Bochner a Master of the Supreme Court

16 July 2019

SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION

Application pursuant to s 7 of the Inheritance (Family) Provision Act 1972 (SA) for further provision from an estate.

Held: The plaintiffs are not entitled to further provision from the estate of their father.

Inheritance (Family Provision) Act 1972 (SA), referred to.
Smith v Smith [2018] SASC 93; Singer v Berghouse (No 2) (1994) 181 CLR 201; Tiburzi v Butler [2017] SASCFC 89; Carter v Brine [2015] SASC 204; Bowyer v Wood (2007) 99 SASR 190, considered.

POTTER & ANOR v BELLIFEMINI & ANOR
[2019] SASC 120

  1. JUDGE BOCHNER.  This is an application pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (“the Act) for further provision from an estate, filed by the daughters of the deceased. For the reasons that follow, I have determined that the plaintiffs are not entitled to further provision from the estate of their father. Throughout these reasons, I will refer to the first plaintiff as Vanessa and the second plaintiff as Tonia. This is for ease of reference only and I mean no disrespect by it. I will refer to the first and second defendants jointly as “the defendant”.

    Evidence relied on

  2. In reaching my decision, I have considered the following evidence:

    ·Vanessa’s affidavit filed on 7 May 2019 (P3);

    ·Tonia’s affidavit filed on 8 May 2019 (P4);

    ·The defendant’s second affidavit filed on 4 December 2018 (FDN 22);

    ·The defendant’s third affidavit filed on 3 April 2019 (D7);

    ·The defendant’s fourth affidavit filed on 4 April 2019 (D6);

    ·The defendant’s first affidavit filed on 21 May 2018 (D11);

    ·The oral evidence of Vanessa, Tonia and the defendant.

    Background

  3. Norman Bellifemini (the deceased) was born in September 1949, in Port Pirie. He married his first wife in May 1972. He had two children, Tonia, who was born on 7 September 1972, and Vanessa, who was born on 9 October 1973. The deceased and his first wife separated in about 1982, and were divorced in about May 1983. Following the divorce, Vanessa lived with her mother, and Tonia lived mostly with the deceased.

  4. The deceased and the defendant started dating in May 1987. They purchased a property together in Port Pirie in 1989, with the intention that it would become their home. They contributed equally to the deposit. Initially, the defendant lived in the property with her son, while the deceased lived in a rental property with Tonia. During this period, the defendant made all of the mortgage payments on the property. On 8 May 1993, the deceased and the defendant were married, and from this time lived together in the home that they jointly owned. After their marriage, the defendant’s son continued to live with them.

  5. In 1995, the…

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Potter v Bellifemini [2019] SASC 120
Case
[2019] SASC 120
Decision Date

CaseChat Overview and Summary

The matter of Potter v Bellifemini involved the daughters of Norman Bellifemini, who passed away in 2016, contesting the distribution of his estate. Vanessa and Tonia, the daughters, sought to challenge the will on the grounds that it did not provide for their adequate maintenance, education, and advancement in life. The dispute was heard in the Supreme Court of South Australia. The primary legal issue in the case was whether the daughters were left without adequate provision for their proper maintenance, education, and advancement in life as per Section 7 of the Inheritance (Family Provision) Act 1972 (SA). The court needed to determine if the daughters had a legitimate claim under the Act and, if so, what provision should be made out of the deceased's estate to meet their needs.

The court examined the evidence and circumstances surrounding the deceased's estate and his financial decisions. It was noted that the deceased had withdrawn significant sums from his superannuation account shortly before his death, which left no remaining funds for distribution to his daughters. The court applied the principles established in Singer v Berghouse (No 2) and other relevant cases to assess the daughters' claims. It considered whether the deceased, had he been fully aware of the circumstances, would have made different testamentary provisions for his daughters. The court found that the deceased had provided for his wife adequately and that there was no evidence to suggest that he would have made different provisions for his daughters if he had been fully aware of their needs. Consequently, the court dismissed the daughters' claims, holding that they had not been left without adequate provision for their maintenance, education, and advancement in life.

In light of the above, the court made no order in favour of the plaintiffs. The daughters' application under the Inheritance (Family Provision) Act 1972 (SA) was dismissed, and they were not entitled to any provision from the estate of the deceased.

Orders

Orders of the court

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Background

Background to the litigation

In reaching my decision, I have considered the following evidence:·Vanessa’s affidavit filed on 7 May 2019 (P3);·Tonia’s affidavit filed on 8 May 2019 (P4);·The defendant’s second affidavit filed on 4 December 2018 (FDN 22);·The defendant’s third affidavit filed on 3 April 2019 (D7); ·The defendant’s fourth affidavit filed on 4 April 2019 (D6);·The defendant’s first affidavit filed on 21 May 2018 (D11);·The oral evidence of Vanessa, Tonia and the defendant.Background Norman Bellifemini (the deceased) was born in September 1949, in Port Pirie. He married his first wife in May 1972. He had two children, Tonia, who was born on 7 September 1972, and Vanessa, who was born on 9 October 1973. The deceased and his first wife separated in about 1982, and were divorced in about May 1983. Following the divorce, Vanessa lived with her mother, and Tonia lived mostly with the deceased. The deceased and the defendant started dating in May 1987. They purchased a property together in Port Pirie in 1989, with the intention that it would become their home. They contributed equally to the deposit. Initially, the defendant lived in the property with her son, while the deceased lived in a rental property with Tonia. During this period, the defendant made all of the mortgage payments on the property. On 8 May 1993, the deceased and the defendant were married, and from this time lived together in the home that they jointly owned. After their marriage, the defendant’s son continued to live with them. In 1995, the deceased and the defendant sold their property and lived in rented accommodation. They then purchased a vacant block in Port Pirie, with a view to building; however they ultimately moved to Adelaide and sold the block. The defendant moved to Adelaide first, while the deceased waited for a transfer with his employer. From April 2003, the deceased and the defendant lived in rental accommodation in Enfield, Adelaide, and in 2005, they bought the property. This remained their matrimonial home until the death of the deceased. The defendant still lives there. The Enfield property was purchased with the assistance of a loan from a credit union. The deceased worked as a cook throughout the marriage. In 2007, he sought to reduce his hours, and at this time, withdrew $123,162.90 from his superannuation to reduce the mortgage over their home. He continued working until November 2008, when he suffered a cardiac arrest. He did not return to paid employment after this time. In about March 2008, the defendant received an inheritance from her mother’s estate. This money was used to discharge the mortgage over the matrimonial home. In February 2011, the deceased received a lump sum payment of $62,691.37 from his superannuation. This money was used for the joint benefit of the deceased and the defendant. Following his cardiac arrest, the deceased was unable to drive for six months, and required both physical and emotional support from the defendant. In 2009, he had an operation on his hip, and spent a considerable period of time in hospital. From this time onward, the defendant cared for the deceased as required.

Evidence

Evidence Before The Court

As set out above, the deceased withdrew money from his superannuation account on two occasions the first in 2007, within a year of making his last will, and the second in February 2011, five years before his death. As a result, there were no moneys remaining to be distributed to Vanessa and Tonia. It is these circumstances that have led to their making a claim pursuant to the Act.The evidenceVanessa Vanessa was born in 1973, and at the time of the hearing she was 45 years old. She is married with two children, one of whom (her son) is no longer dependent, although he still lives with her and her husband. Her daughter is in her final year at school and works part time. Vanessa married her husband, Bruce, in 1996. Bruce is a builder, but he suffers ill health and has a limited earning capacity. Vanessa works as a registered nurse at an aged care facility in Mount Gambier. She earns around $66,000 per year. She has had both hips replaced. She is otherwise in good health. Vanessa and Bruce own their own home, which is valued at about $250,000. There is an outstanding mortgage, the balance of which is about $125,000. Vanessa has a moderate amount of superannuation; Bruce has recently withdrawn his superannuation, which he will use to reduce the mortgage, and to set up a business as a builder. They own three motor vehicles, with a combined value of about $35,000. They have no other assets of significance. After her parents’ separation, Vanessa lived with her mother, and for many years, had no contact with the deceased. She re-established contact with him about 20 years ago, and after that time, they saw each other regularly. Their contact was necessarily limited because the deceased lived in Adelaide and Vanessa lives in Mount Gambier; nonetheless, Vanessa and her family frequently visited Adelaide for her children’s sporting commitments, and would frequently visit him during those times. Vanessa says that she has never had a good relationship with the defendant. It appears that she also has very limited contact with her mother; she says that she has had no contact at all with her mother since 2016, and only very limited contact from about 2009. Vanessa gave limited oral evidence, with the majority of her evidence being given by way of affidavit. Vanessa’s dislike of the defendant is made clear in her affidavit, with statements such as:I presume that the deceased left the Port Pirie Hospital because in or about 2002 Cherylyn took it upon herself to move to Adelaide.[1]and I am amazed that the deceased had no more than about $60,000 in the Bank, plus a joint share in a house, when he died.[2][1] P3 at [23].[2] P3 at [104]. It is also apparent from the various statements made by Vanessa about the defendant’s travel, and about the cash prize won by the deceased in a competition at a supermarket. It seems that Vanessa seeks to infer that the defendant is a selfish person who thought only of herself and who spent the deceased’s money as her own. Tonia

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It was put to me by the defendant that by leaving the entirety of his estate to his wife of some 23 years, the deceased behaved as a wise and just testator.Consideration The principles to be applied when determining a claim pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (the Act) are well established. Section 7 provides: 7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person (1) Where— (a) a person has died domiciled in the State or owning real or personal property in the State; and (b) by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life, the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled. As daughters of the deceased, the plaintiffs are entitled to claim the benefit of the Act, pursuant to s 6. A two stage process is required, to determine firstly, whether the plaintiffs have been left without adequate provision for their proper maintenance, education and advancement in life, and secondly, if the first question is answered in the affirmative, what provision ought to be made for them out of the estate of the deceased. In Singer v Berghouse (No 2),[8] the Court described it this way:It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the "jurisdictional question". That description means no more than that the court's power to make an order in favour of an applicant under s7 is conditioned upon the court being satisfied of the state of affairs predicated in s9(2)(a). In Australia, it has been accepted that the correct approach to be taken by a court invested with jurisdiction under legislation of which the Act is an example was that stated by Salmond J in In re Allen (Deceased), Allen v Manchester. In that case his Honour said: "The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances."[9](citations omitted)[8] (1994) 181 CLR 201.[9] (1994) 181 CLR 201 at 208 – 209. Section 7 has more recently been considered by Doyle J in Tiburzi v Butler[10] and by Blue J in Carter v Brine.[11][10] [2017] SASCFC 89 at [70] – [74].[11] [2015] SASC 204 at [591] – [594].