JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 November 2021
DATE OF JUDGMENT:	30 November 2021
CASE MAY BE CITED AS:	Re Donateo
MEDIUM NEUTRAL CITATION:	[2021] VSC 792

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FAMILY PROVISION – Where deceased left entire estate to his widow and two minor children, making no provision for eldest three adult children – Where deceased left a letter setting out reasons for his testamentary dispositions – Estrangement – Quantum – Order made for provision to each plaintiff – Administration and Probate Act 1958 (Vic) ss 90, 91, 91A.

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APPEARANCES:	Counsel	Solicitors
For Bianca & Julia Donateo	Ms U Stanisich	Barbayannis Lawyers
For Danielle Bafas	Mr R Boaden	Coote Family Lawyers
For the Defendant	Mr S Newton	Tait Lawyers

TABLE OF CONTENTS

A. Introduction.................................................................................................................................. 1

B. The financial position of the estate.......................................................................................... 2

B.1.Weston St, Brunswick.......................................................................................................... 4
B.2.Johnston St, Fitzroy (half owned)....................................................................................... 6
B.3.Conclusion — value of the estate....................................................................................... 6

C. Dina’s financial position............................................................................................................ 7

D. Danielle.......................................................................................................................................... 9

D.1.Danielle’s current circumstances....................................................................................... 9
D.2.Danielle’s relationship with the deceased...................................................................... 10
D.3.Danielle’s entitlement to a provision out of the estate................................................. 12

E. Bianca and Julia.......................................................................................................................... 12

E.1.Bianca’s current circumstances......................................................................................... 13
E.3.Julia’s current circumstances............................................................................................ 13
E.4.Bianca’s and Julia’s relationships with the deceased.................................................... 13
E.5.Bianca’s and Julia’s entitlements to a provision out of the estate............................... 16

F. The appropriate provisions....................................................................................................... 18

F.1.General comments.............................................................................................................. 18
F.2.Danielle................................................................................................................................. 20
F.3.Bianca and Julia................................................................................................................... 21
F.4.The provisions considered together................................................................................. 23

HIS HONOUR:

A. Introduction

Leonardo Donateo (‘the deceased’) died on 14 January 2019 when he was 67 years old. He was survived by his wife (the defendant, ‘Dina’), two ex-wives, and five children.[1] On 18 April 1978, he married his first wife, Beverley Reece, and on 2 October 1978 they had Danielle, now Danielle Bafas, who is 43 years old. They separated not long after Danielle’s birth, and divorced sometime in 1980. On 20 September 1985, the deceased married his second wife, Cristina Donateo, and they had two children, Bianca Donateo, who was born on 15 February 1987 and is now 34 years old, and Julia Donateo, who was born on 1 July 1990 and is now 31 years old. The deceased and Cristina separated in 1991, but did not formally divorce until 25 April 2010. By early 2001, the deceased was in a relationship with Dina Donateo, and they started living together. They were married on 10 March 2018. On 11 August 2009, Leonardo Donateo (junior) was born, and, on 5 January 2015, Eve Donateo was born. Leonardo is now 12 years old and Eve is now 6 years old. Dina was born in 1974 and is now 47.…

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 Re Donateo

Details

AGLC: Re Donateo [2021] VSC 792
Case: [2021] VSC 792
Decision Date: 30 November 2021

CaseChat Overview and Summary

The matter before the court involved a dispute over the estate of a deceased man who left his entire estate to his widow and two minor children, omitting his three eldest adult children. The adult children sought provision from the estate under the Administration and Probate Act 1958 (Vic). The central legal issue was whether the court should exercise its discretion to make orders for provision to the omitted children, and if so, the appropriate quantum of those orders.

The court examined the circumstances of the deceased’s will and the reasons he provided in a letter detailing his testamentary dispositions. It considered the estrangement between the deceased and his adult children and the statutory criteria under sections 90, 91, and 91A of the Act. The court weighed the importance of the deceased’s freedom to dispose of his property against the needs of the omitted children. After evaluating the evidence and arguments presented, the court determined that provision should be made for each of the plaintiffs.

In its reasoning, the court found that while the deceased had the right to dispose of his estate as he wished, the estrangement did not absolve the court of its duty to consider the needs of the omitted children. The court concluded that the omission was not justified by the circumstances and ordered that provision be made. The quantum of the provision was determined based on the specific needs of each child, their relationship with the deceased, and the extent of their reliance on him. The final orders provided a specific amount for each of the three adult children, reflecting the court's balanced approach to the competing interests at play.

Orders