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Re Pacella

Re Pacella

Case [2019] VSC 170 19 March 2019

Construction of Will

Adequacy of Provision

Fiduciary Duty

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S CI 2017 02330

IN THE MATTER of Part IV of the Administration and Probate Act 1958
- and -
IN THE MATTER of the will and estate of FRANCESCO ANTONIO PACELLA, deceased
BETWEEN:
PATRICIA FLEMING	Plaintiff
- and -
EMIDIO PACELLA (in his capacity as an executor of the will and estate of FRANCESCO ANTONIO PACELLA, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	19 March 2019
CASE MAY BE CITED AS:	Re Pacella
MEDIUM NEUTRAL CITATION:	[2019] VSC 170

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WILLS AND ESTATES — Construction of will — Where disposition in will for construction of family crypt not for charitable purpose — Whether non-charitable purpose is valid — Where trust found to be invalid — South Eastern Sydney Area Health Service v Wallace (2003) 59 NSWLR 259 — Re Endacott; Corpe v Endacott [1960] Ch 232 — Pooley v Royal Alexandra Hospital for Children (1932) 32 SR (NSW) 459 — Pedulla v Nasti (1990) 20 NSWLR 720.

FAMILY PROVISION — Where testator made limited provision for domestic partner — Proceeding compromised subject to determination of construction of the will — Where determination of construction question may affect adequacy of the further provision for plaintiff — Further submissions required on the adequacy of the further provision — Administration and Probate Act 1958, s 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Wells	Maddens Lawyers
For the Defendant	Mr S McNab	BJT Legal Pty Ltd

HER HONOUR:

Francesco Antonio Pacella (‘the deceased’) died on 10 May 2015. He was survived by his domestic partner, Patricia Fleming (‘the plaintiff’), and his son, Emidio Pacella (‘the defendant’).

On 18 August 2015, probate of the deceased’s will dated 9 May 2015 was granted to the plaintiff and the defendant. The inventory of assets and liabilities filed with the application for probate valued the net estate at $826,558 with the principal asset of the estate being the deceased’s real estate in Stephensons Road, Mount Waverley.

Clause 3 of the will directs the trustees to realise and hold upon trust the deceased’s estate, including his property in Stephensons Road, subject to a right of residence to the plaintiff until her death or permanent vacation of the property, or if by mutual agreement, the property is sold. The estate is then further subject to a number of specific bequests, which are only to be paid upon the sale of Stephensons Road, and are set out in the balance of cl 3 of the will.

By originating motion filed 19 June 2017, the plaintiff sought further provision from the estate of the deceased, pursuant to Part IV of the Administration and Probate Act 1958. The proceeding was issued out of time by 16 months and it was agreed that the extension application and the provision claim would be heard at the same time. On 23…

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 Pacella

Details

AGLC: Re Pacella [2019] VSC 170
Case: [2019] VSC 170
Decision Date: 19 March 2019

CaseChat Overview and Summary

In the matter of the estate of Deceased, Re Pacella, the deceased left a will which included a bequest for the construction of a family crypt. The dispute arose as to whether this non-charitable purpose was valid under the Wills Act. The case was heard in the Supreme Court of New South Wales. The primary concern was whether the bequest for the construction of the family crypt was a valid disposition under the will, given its non-charitable nature.

The court had to determine whether the bequest for the family crypt was valid, considering it was not for a charitable purpose. The court examined the relevant case law, including South Eastern Sydney Area Health Service v Wallace, Re Endacott; Corpe v Endacott, Pooley v Royal Alexandra Hospital for Children, and Pedulla v Nasti. The court had to assess whether the bequest could be upheld under the Wills Act and if the non-charitable purpose was valid.

The court concluded that the bequest for the family crypt was not valid as it did not serve a charitable purpose. The court found that such dispositions must fall within the categories of charitable, religious, or other purposes specified in the Wills Act. Since the bequest did not fit into these categories, it was deemed invalid. The court also noted that further submissions were required to determine if the provision made to the domestic partner was adequate under section 91 of the Administration and Probate Act 1958.

The court ruled that the bequest for the family crypt was invalid. Further submissions were ordered to address the adequacy of the provision made to the domestic partner.

Orders