Pozzebon v Pozzebon - [2024] VSC 205

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2023 04095

MARGARET DANIELLA POZZEBON	First Plaintiff
and
LUISA MARGERITA RIGONI	Second Plaintiff
v
ORLANDO POZZEBON (in his capacity as executor and trustee of the Will and Estate of MARIA POZZEBON, deceased, and personally)	Defendant

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JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2024
DATE OF JUDGMENT:	29 April 2024
CASE MAY BE CITED AS:	Pozzebon v Pozzebon
MEDIUM NEUTRAL CITATION:	[2024] VSC 205

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WILLS — Construction of will — Bequest of real property sold by attorney using powers under enduring power of attorney prior to testator’s death — Whether principles of ademption apply to sale — Specific Gift — Principles of ademption — Powers of Attorney Act 2014 (Vic), s 83A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr N J Baum	A.B. Natoli Lawyers
For the Defendant	Mr John Di Santo

HER HONOUR:

Introduction

This proceeding concerns the interpretation of the will of Maria Pozzebon,[1] who died on 23 June 2021 aged 89. The plaintiffs are two of Maria’s children, Margaret Pozzebon and Luisa Rigoni. Maria’s son Orlando Pozzebon, who is the executor and trustee of her will and estate, is the defendant. Maria also had a daughter, Susan, who died in 2022.[2] In particular, the issue is whether the Will dated 28 November 2012 made a specific gift of a property at 307, Station Street Fairfield, where she had lived until 2018. Unit 1/307 on that site (the Fairfield property) was, under clause 8 of the Will, the subject of a bequest to her four children. Maria had moved out of the Fairfield property in 2018 when she had developed Alzheimer’s dementia and it had become necessary for her to move into an aged care home. The Fairfield property was sold in 2019 by her son Orlando, who was her attorney under a financial power of attorney, to finance the cost of the aged care accommodation.
[1]For clarity, I refer to the family members by their first names, and I do not mean any disrespect in doing so.
[2]The estate of Susan Zarb (née Pozzebon) was not a party to the proceeding. Judicial Registrar Keith made orders on 2 November 2023, requiring the defendant to serve on the legal personal representative of Susan’s estate the Originating Motion and affidavits in the proceeding, and giving an opportunity for the representative of the estate to apply to be added as a defendant to the proceedings. The documents were served on 10 November 2023: see affidavit of John Di Santo sworn 7 March 2024, at [5]-[6]. The representative of Susan’s estate elected not to join the proceeding.

The question for the Court is whether s 83A of the Powers of Attorney Act 2014 (Vic) applies to the Fairfield property, with the effect that Maria’s four children have the same interest in the proceeds of sale of the Fairfield property as they would have had…

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 Pozzebon v Pozzebon

Details

AGLC: Pozzebon v Pozzebon [2024] VSC 205
Case: [2024] VSC 205
Decision Date: 29 April 2024

CaseChat Overview and Summary

In the case of Pozzebon v Pozzebon, the Court was tasked with interpreting a will that left a bequest of real property to the testator’s daughter. The property had been sold by the attorney for the estate using powers granted under an enduring power of attorney prior to the testator’s death. The dispute centred on whether the principles of ademption should apply to the sale, effectively depriving the daughter of the bequest. The Court had to determine the validity of the sale and the applicability of ademption in this context.

The primary legal issue was whether the principles of ademption applied to a sale of real property executed by an attorney under an enduring power of attorney prior to the testator's death. Ademption, in this context, would mean that the bequest of the property was frustrated by its prior disposition. The Court also had to consider whether the sale conducted by the attorney under the powers granted by the enduring power of attorney was valid and binding on the estate.

The Court found that the principles of ademption did not apply in this situation. The sale of the property by the attorney was valid and binding, as it was conducted within the scope of the powers granted under the enduring power of attorney. The Court held that the sale was not a disposition of the property as part of the estate and thus did not frustrate the bequest. Consequently, the daughter was entitled to receive the proceeds from the sale of the property. The Court’s decision hinged on the interpretation of the Powers of Attorney Act 2014 (Vic) and its provisions concerning the validity of actions taken by an attorney under an enduring power of attorney.

The Court ordered that the sale of the real property by the attorney was valid and that the daughter was entitled to receive the proceeds from the sale. The bequest of the property to the daughter was not frustrated by the prior sale, and she was to receive the benefit of the sale in accordance with the will. This decision clarified the interaction between enduring powers of attorney and testamentary dispositions, providing guidance on the application of ademption principles in such circumstances.

Orders