Regine v Pletka - [2020] VSC 129

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S ECI 2018 00900

ROSA REGINE	Plaintiff
v
DANIELLE MARGARETHE PLETKA (who is sued as the Executor of the Estate of Peter George Pletka deceased)	First Defendant
- and -
JOSHUA DAVID PLETKA (who is sued as the Executor of the Estate of Peter George Pletka deceased)	Second Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2020
DATE OF JUDGMENT:	20 March 2020
CASE MAY BE CITED AS:	Regine v Pletka
MEDIUM NEUTRAL CITATION:	[2020] VSC 129

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WILLS AND ESTATES – Where terms of the will require a trust to be created – Where executors have given consideration to the plaintiff’s request for specific terms of the will to be carried out – Where estate is still in administration phase – Where plaintiff has made an application for further provision – Where liabilities of estate are not known – Where plaintiff’s claim not based on financial need – Jurisdiction of the Court – Re Ralphs; Ralphs v District Bank Ltd [1968] 1 WLR 1522, considered – Re Simson; Simson v National Provincial Bank Ltd [1950] 1 Ch 38, considered – Blackman v Permanent Trustee Co Ltd [2003] NSWSC 305, considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R C Wells	Wainwright Ryan Eid Lawyers
For the Defendants	Mr S T Pitt	King & Collins

HIS HONOUR:

Peter George Pletka died on 21 October 2017, leaving a will dated 26 May 2017. He was survived by his de facto partner, Rosa Regine, and his children, Danielle Pletka and Joshua Pletka.

On 16 May 2018, probate of the will was granted to Danielle Pletka and Joshua Pletka. They are the executors of his estate and the defendants in this proceeding.

The deceased’s estate is very substantial, being valued at in excess of $38 million. Within Victoria, the estate is comprised of property valued at $6,750,000 and $3,624,565 in cash.

Clause 3 of the deceased’s will, titled ‘Provision for Rosa Regine’, provides for an annuity of $150,000 to be paid to Ms Regine. It states that:

3.1I give to my trustees the sum of $1,500,000.00 to be held upon trust and to pay from the capital and any income annual instalments in arrears on each anniversary of my death the sum of $150,000.00 to my partner Rosa Regine of Viale Majno 20 Milano, Italy 20129 (“Rosa”) during her lifetime or until the capital and any income of such fund is exhausted.
3.2If my partner Rosa fails to survive me or survives me but dies before the fund established by this clause is exhausted the capital and any income of that fund shall fall into and form part of my net residuary estate to be dealt with in the manner contemplated in clause 6 of this my Will.

Ms Regine has brought an application for further provision from the deceased’s estate pursuant to Part IV of the Administration…

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 Regine v Pletka

Details

AGLC: Regine v Pletka [2020] VSC 129
Case: [2020] VSC 129
Decision Date: 20 March 2020

CaseChat Overview and Summary

Regine v Pletka involved a dispute regarding the interpretation and execution of a will. The plaintiff, Regine, sought specific terms of the will to be carried out by the executors, Pletka. The estate was still in the administration phase, and the liabilities of the estate were not yet known. Regine applied for further provision, but her claim was not based on financial need.

The primary legal issues before the court were whether the executors were required to create a trust as per the terms of the will, and whether the court had jurisdiction to make a further provision order given the estate's administration phase and the uncertain liabilities. The court considered several precedents, including Re Ralphs, Re Simson, and Blackman v Permanent Trustee Co Ltd, to determine its jurisdiction and the applicability of further provision orders.

The court found that, based on the established precedents, it did not have the jurisdiction to make a further provision order when the estate was still in the administration phase and the liabilities were not yet known. The court emphasised that the plaintiff’s claim did not pertain to financial need, which further underscored the limitation on the court’s jurisdiction in this matter. Consequently, the court dismissed Regine's application.

No specific orders were made by the court, as the application was dismissed based on jurisdictional grounds. The court’s decision highlighted the importance of adhering to the established legal framework governing the administration of estates and the conditions under which further provision orders can be granted.

Orders