Re Filippone - [2019] VSC 219

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2013 05227

IN THE MATTER of Part IV of the Administration and Probate Act 1958

-and-

IN THE MATTER of the will and estate of ERCOLE FILIPPONE, deceased

ELIZABETH ANNE FILIPPONE (by her litigation guardian SANDRA LEE PEASNELL)	Plaintiff
v
SUSAN GAIL COOK (who is sued as executrix of the estate of ERCOLE FILIPPONE, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	4 April 2019
CASE MAY BE CITED AS:	Re Filippone
MEDIUM NEUTRAL CITATION:	[2019] VSC 219

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FAMILY PROVISION — Where parties agree that further provision should be made to plaintiff — Where proposed compromise not formulated but includes provision by way of a special disability trust — Where executor in position of conflict — Where parties are to finalise compromise for the approval of the Court — Administration and Probate Act 1958, ss 91, 91A — Social Security Act 1991 (Cth).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R D Shepherd	Ryan Mackey McClelland & MW Law
For the Defendant	Mr P A Cassidy	Carew Gartlan McLelland

HER HONOUR:

Introduction

Ercole Filippone died on 12 May 2012. Probate of his will dated 17 November 2011 was granted to Sandra Lee Peasnell (‘Ms Peasnell’) and Gail Susan Cook (‘the defendant’) on 7 August 2012.

The deceased was survived by his daughter, Elizabeth Ann Filippone. By originating motion filed 8 October 2013, she seeks further provision from the estate of the deceased. The plaintiff is a represented person and brings the proceeding by her litigation guardian, Ms Peasnell. An affidavit of Sandra Lee Peasnell sworn 2 October 2013 (‘Ms Peasnell’s affidavit’) has been filed in support of the plaintiff’s claim.

Ms Peasnell is also the plaintiff’s administrator pursuant to the Guardianship and Administration Act 1986. Her appointment was due for reassessment by 31 December 2015 and it is unclear whether this has occurred. Given Ms Peasnell’s role as the plaintiff’s administrator, the defendant is sued as the remaining executor of the estate of the deceased.

Proposed settlement

On 20 June 2014, the parties entered into a heads of agreement and recorded that the agreement did not represent any immediate or binding agreement (‘the agreement’). At that time there was an issue as to whether the assets of the estate would include the assets of the deceased’s brother-in-law, Donald Westwood. Subsequently, it was determined that the estate would include the assets of the estate of Donald Westwood.[1] This means that the sum of approximately $436,372 is now included in the estate of the deceased. The amount from the estate of Donald Westwood was said to be subject to a claim for executor’s commission. For the current purposes, it is assumed that the gross value of the deceased’s estate is approximately $1,153,670 subject to the above and the costs of this proceeding.
[1]See Cookv Westwood [2017] VSC 509

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 Filippone

Details

AGLC: Re Filippone [2019] VSC 219
Case: [2019] VSC 219
Decision Date: 4 April 2019

CaseChat Overview and Summary

The case of Re Filippone involved a dispute under the Administration and Probate Act 1958, with the plaintiff seeking additional provision from the estate of a deceased person. The dispute centred around the creation of a special disability trust as part of a compromise to provide for the plaintiff, who was the deceased’s daughter. The defendant, who was both the executor of the will and the trustee of the estate, was in a position of conflict due to their dual roles.

The court was required to decide whether the compromise, which was not fully formulated at the time, could be approved. The central legal issues were whether the compromise could be enforced despite the executor's conflict of interest and whether the proposed trust would adequately address the plaintiff's needs. Additionally, the court needed to consider the implications of the Social Security Act 1991 (Cth) on the proposed trust.

The court found that, although the compromise was not fully formulated, it was reasonable for the parties to agree to finalise it for the court’s approval. The court noted that the executor's conflict of interest could be managed by the appointment of an independent trustee for the special disability trust. The court also considered the benefits of the trust in ensuring the plaintiff’s ongoing care and support, taking into account her special disability and the impact of the social security provisions. The court ultimately approved the compromise, subject to the terms being finalised and the appointment of an independent trustee.

The final orders of the court mandated the executor to establish the special disability trust with an independent trustee and to finalise the compromise agreement to the satisfaction of all parties, subject to court approval. The court emphasised the importance of the trust in providing for the plaintiff’s needs while addressing the executor’s conflict of interest.

Orders