Tucci v Tucci

[2009] VCC 300

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
COMMERCIAL

FAMILY PROPERTY DIVISION

Case No. CI-08-00261

IN THE MATTER of the Estate of Emidio Tucci, deceased
and

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

ROSA TUCCI	Plaintiff
v
ARTHUR TUCCI (as executor of the Estate of Emidio Tucci, deceased)	Defendant

---

JUDGE:	HIS HONOUR JUDGE MORROW
WHERE HELD:	Melbourne
DATE OF HEARING:	25 and 26 February 2009
DATE OF JUDGMENT:	4 March 2009
CASE MAY BE CITED AS:	Tucci v Tucci
MEDIUM NEUTRAL CITATION:	[2009] VCC 0300

REASONS FOR JUDGMENT

---

Catchwords: Application under Part IV Administration and Probate Act 1958 – small estate

– gift inter vivos – failure to make adequate provision – 1971 will.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Johnson	John Pastro & Co.
For the Defendant	Mr T J Sowden	Ken Smith & Associates
HIS HONOUR:

1          This is a claim under Part IV of the Administration and Probate Act 1958 (“the Act”). The plaintiff, Ms Rosa Tucci, is the sister of the defendant, Mr Arthur Tucci, who is the executor and trustee of the estate of their late father, Mr Emidio Tucci, who died on the 5th January 2008.

2          By a Will executed on either the 14th April or 14th August 1971, the deceased left his entire estate to his wife, Mrs Francesca Tucci, but if she predeceased him (and she did on 28th September 2000) then the deceased bequeathed a property at number 11 The Eyrie, Lilydale to the defendant and a property at number 5 Jones Street, Lilydale to the plaintiff, and the residue of his estate was to be shared equally between the two of them.

3          The sole asset of the estate which falls to be considered in this application is the property at number 11 The Eyrie, Lilydale, which has a present valuation of some $320,000.

4          The parties have tendered a Joint Court Book (“JCB”). I take this opportunity to commend both counsel and their instructing solicitors on the sensible and expeditious way in which this case has been conducted. All seem to have been conscious to keep legal costs to a minimum.

5          The property at number 5 Jones Street, Lilydale was in fact transferred to the plaintiff in April 1985 by way of a gift. Although the property at that time was in the name of Mrs Francesca Tucci, it is agreed that the deceased treated this property as his own, and in any event was aware of the fact that it was being transferred to his daughter, Rosa.

6          Prior to this, on the 8th March 1961, the deceased had purchased number 25 The Eyrie, Lilydale at the same time that he purchased number 11 The Eyrie in March of 1961, but the property at number 25 was registered in the name of the defendant. At the time that the family moved in to live at number 11 The Eyrie, number 25 was a vacant block of land. The former family home at number 5 Jones Street was a small cottage and number 11 was a much more substantial property.

7          The defendant was born on the 18th August 1938 and the plaintiff was born on the 28th February 1947. The defendant had commenced work for Telecom in 1960 when he was about twenty-one years of age and he gave evidence that from the time he started work he handed over his pay packet to his father, who gave him back some money for his daily expenses but otherwise retained the balance, and in this way the defendant says he paid for the vacant land at number 25 The Eyrie, which at the time was worth some £600 to £800. I might add that the plaintiff said that she, too, had to hand over her pay packet when she commenced work as a hairdresser and that this situation continued until she left home to get married in 1968. The defendant said that he continued to give his wages to his father even after he married in 1963 and until his daughter was about thirteen when he, his wife and children moved out of number 11 The Eyrie in 1976. By this time he had built a house at number 25 The Eyrie as a result of savings, he said, of some $10,000 and a bank loan. This suggests that the defendant could not have given all his wages to his father, as he claimed, but I am unable to find, one way or the other, as to whether he repaid his father for the land at number 25 The Eyrie.

8          The number 5 Jones Street property was in a rundown condition by the time it was transferred to the plaintiff in 1985, and in the meantime the plaintiff and her husband had gone into various business ventures together and it was decided to spend some money on the Jones Street property and then let it. But soon after this was done a fire broke out in the rear of the premises in February of 1989, and following that the house could not be re-let.

9          In the meantime, in 1988, the deceased and the plaintiff’s husband, Victor, had decided to buy an adjoining property at number 3 Jones Street, merge the two titles and build units on the land. In fact these plans never came to fruition, but in the meantime there had been a fire at the property at number 3 Jones Street which totally destroyed the building on it, so at the end of the day neither of these premises were returning an income. Both number 3 and number 5 Jones Street remained vacant, and then in March of 1996, the plaintiff decided to raise money on the title for number 5 Jones Street, whereupon $15,000 was borrowed by way of a mortgage to use in the business that the plaintiff and her husband were then conducting.

10        Finally, on 8 March 1996, number 5 Jones Street was sold by the plaintiff for some $50,000.

11        The defendant and his family continued to live in number 25 The Eyrie and he continued in his occupation as a linesman for Telecom until 1992. Subsequently, the defendant and his wife decided to sell the property at number 25 The Eyrie and move into his present address at 54 Castella Street, Lilydale, now valued at $300,000. It is agreed that the amount owing on the defendant’s mortgage on his present residence is $111,500.

12        It is also agreed that as at June of 1985 the value of the property at number 5 Jones Street was approximately $35,000 and it is further agreed that its present value, with a house erected on it, is between $200,000 and $220,000.

13        The property at number 11 The Eyrie is presently rented out.

14        The plaintiff, who is now sixty-two years of age, does not enjoy good health and neither does the defendant, who is now aged seventy.

15        The plaintiff said that she has been on a disability pension since 1996 when she suffered injuries in an accident involving a tram, those injuries involving a broken leg and spinal injuries. The plaintiff, who had taken an active role in various businesses, including a motel and a hotel, with her husband, said she last worked in 1996 when she was a shop assistant in a delicatessen for a few months. The plaintiff said that in 2004 she did a course at RMIT to qualify her to work in a nursing home, and during that course was paid the sum of $440 a week as some sort of a Newstart allowance, but once the course ended she had never in fact been able to work in a nursing home, or indeed anywhere else. Apparently she has trouble with her breathing and she said that in fairly recent times she had gone to New York to see doctors there in relation to her condition.

16        The plaintiff’s marriage to her husband, Victor, has failed although they both live under the one roof at a property in Greensborough which is valued at some $600,000 and subject to a mortgage of $180,000. The plaintiff said that her only income was a disability pension of $540 per fortnight which she has received since 2001, and she has no other significant assets. She said that she and her husband have lived independent lives since he took a mistress some years ago and that although the situation is unsatisfactory, neither party will obtain a divorce because it is against the teachings of their Catholic religion. The plaintiff said that her husband pays half of the mortgage which amounts to them paying $338 a fortnight each out of their pensions. The plaintiff said that her husband is also on a pension although he does some work on the side. She said that her husband contributes towards the food and other outgoings in relation to the house, and although she believes he may have other assets, she is unaware as to precisely what they amount to. The plaintiff and her husband have three children, one of whom lives with his wife and child with her. The plaintiff said that her husband had lent her $5000 pursuant to a written agreement between them to help finance her litigation. The plaintiff said that she drives a 1983 model car, that she needs to borrow money from her children for clothes and sometimes food although the son who lives with her, with his wife and child, contribute, but she says they are moving out next month. She said that her husband, Victor, refuses to sell the matrimonial home, which she says she is keen to do, and to purchase a smaller property.

17        The defendant tendered, as part of his evidence, a report from Dr Andrew McIntosh, general practitioner, of Lilydale, dated 24th August 2000 in respect of his medical condition. That report shows that the defendant has been a patient of Dr McIntosh for approximately twenty years, and he notes that in July of 1996 the defendant was diagnosed with renal failure requiring an admission to hospital where he was commenced on renal dialysis as well as medication to manage his hypertension. The defendant has insulin dependent diabetes which developed in November of 1996. In addition, the defendant suffers from heart disease, diverticulitis, gastro esophageal reflux disease, recurrent pneumonia and chronic cholecystitis, pancreatis and urinary tract infections as a result of his renal failure. The defendant has required major surgery in the form of a renal transplant in March of 2004 and these serious illnesses have greatly affected his physical and emotional wellbeing and disrupted his life. Dr McIntosh’s report can be found at pages 35 and 36 of the JCB.

18        The defendant says that his income is some $600 per fortnight by way of a disability pension and that a son who lives with him and his wife makes a contribution towards his board.

19        Apparently the deceased went into a nursing home in late 2002 and remained there until his death in January 2008. Both the plaintiff and the defendant claimed that they visited their father extensively whilst he was in the nursing home and I accept they did, and provided support to him. It seems clear that over the years the deceased developed a close relationship with his son, the defendant, because they lived close to one another, and indeed the defendant spent more time living with his parents even though he married, as I have referred to above.

20        The legal principles on which this case must be decided are not in dispute. Under Part IV of the Act – s.91(3), I have no jurisdiction to make an order unless I am of the opinion that the deceased’s Will did not make adequate provision for the proper maintenance and support of the plaintiff.

21        In reaching that decision, subsection (4) requires me to have regard to a number of matters which are set out in subsections (e) through to (p).

22        The first question to be decided is whether, at the date of his death, the deceased had a responsibility to make provision for the plaintiff’s proper maintenance and support. It is not in dispute that the deceased did have that responsibility but the question is: Did he fail to properly exercise that responsibility?

23        In carrying out this exercise, I must place myself “in the position of a wise and just testator, rather than a fond and foolish, husband and father”. – Bosch v Perpetual Trustee Co (Ltd) [1938] AC 463, at 478-9.

24        It is not in dispute that I must look at the situation as at the date of death of the deceased.

25 As far as s.91(4)(e) of the Act is concerned, the only survivors of the deceased are the plaintiff and the defendant. Another child who was born in 1958 died in 1963. It seems to me that both the plaintiff and the defendant had a loving relationship with the deceased, although it would appear that the defendant’s relationship was closer, and as I have already noted, he, including his own family, lived with the deceased much longer than the plaintiff did and even when the defendant left the deceased’s home he lived in the same street. The defendant had the keys to the deceased’s home and looked after the property when the deceased went into care and arranged for a suitable tenant to occupy the property. It seems to me that, all things considered, the deceased had a closer relationship with the defendant than he did with the plaintiff, if for no other reason than the proximity of their homes.

26        As far as subsection (f) is concerned, whilst I accept that the deceased had an obligation towards both the plaintiff and the defendant, there was no obligation on him to treat them equally – see Blair v Blair (2004) 10 VR 69, at page 80 (Chernov JA). It seems to me that the deceased clearly intended to favour the defendant when he ”purported” to give the property at number 5 Jones Street to the plaintiff and the property at number 11 The Eyrie to the defendant, which at the time of the execution of the Will, and at all relevant times, was a much more valuable property than number 5 Jones Street.

27        As far as subsection (q) is concerned, the size of the estate is modest, and as I have noted, consists of only one asset.

28        In relation to subsection (h), I have already referred to the financial resources of the parties which are extremely modest, both are on pensions and both have mortgages over their homes.

29        As far as subsection (i) is concerned, again I have noted the fact that both parties are in ill-health, with the defendant’s health being more precarious than that of the plaintiff. I accept that neither of them will work again.

30        The plaintiff’s age of sixty-one is a matter that must be taken into account under subsection (j).

31        As far as subsection (k) is concerned, I am not able to say that either the plaintiff or the defendant made any contribution to the building up of the asset in the estate other than the fact that when they were much younger and living at home they gave their father their pay packets, but as the defendant says, once the property at number 25 The Eyrie was purchased in his name, he believed that the money that he gave his father was used to pay off the purchase of the block of land. Both parties contributed to the welfare of the deceased as far as they were able during his life, insofar as they supported him, visited him and generally assisted in his welfare.

32        Subsection (l) is very relevant in this application, insofar as the property at number 5 Jones Street was transferred to the plaintiff in 1985. The law has long recognised that where a parent makes a gift in favour of a child of an asset that has been devised to that child under a parent’s will, the gift will be presumed to have been given in substitution for, or in satisfaction of, the legacy under the will, and in general I refer to Lacon v Lacon [1891] 2 Ch 482, and in particular, the Judgment of Lindley LJ at page 492.

33        Mr Johnson, counsel for the plaintiff, submits that although the plaintiff obtained this property in 1985, in the end she received no real or substantial benefit from this gift because in fact it was a rundown property, that it suffered a fire and that it remained in a derelict condition, and by the time the plaintiff sold it and the mortgage on it was paid out, she obtained no real benefit. This overlooks the fact that that plaintiff was able to use the property to raise funds for her business, and it seems to me that in fact the plaintiff was more concerned about the business activities of her and her husband than she was with this property. In saying that, I accept that the deceased and her husband effectively decided what happened to the proposed venture of merging the titles of number 3 and number 5 Jones Street and developing the properties, and it was no fault of hers that these plans did not come to fruition. The fact remains however that the plaintiff received this legacy in 1985 and did not have to wait until her father’s death before obtaining this property, whereas the defendant has only received his legacy on the death of his father. True it is, of course, that the property at number 11 The Eyrie substantially increased in value from $75,000 in 1985 to $320,000 today, and I refer to the Valuation of Jan Hancock, which has been added to the Court Book and which has been accepted by the parties. The property in the meantime had been maintained by the deceased, at no expense to the defendant, up until the deceased died in January of 2008.

34        As far as subsection (m) is concerned, it is not in dispute that the plaintiff was not being maintained by the deceased at all relevant times up to his date of death.

35        Subsection (n) is relevant, insofar as the plaintiff’s husband, Victor, does have a liability under the law to maintain her. As noted above, he in fact, according to the plaintiff, simply contributes to the expenses of the household as if he were a boarder. He is on a pension, as is the plaintiff, and hence his income is limited, but the plaintiff said she was not really aware of what other assets he may own, apart from his interest in the matrimonial home. The plaintiff has not taken any steps towards obtaining “maintenance” from her husband and has taken no steps to divorce him because of her religious convictions. Hence, whilst the plaintiff’s husband has a legal and moral obligation to maintain her, in reality it is unlikely that it will ever happen. The plaintiff gave evidence that her children, and in particular her son who lives with her, have helped to maintain her; they do not have a legal liability to do so.

36        Subsection (o) requires me to take into account the character and conduct of the applicant or any other person, and suffice to say, there is nothing to disqualify the plaintiff on these grounds.

37        Finally, subsection (p) gives me a wide discretion to take into account “other matters the Court considers relevant”. I believe that I have taken into account all of the relevant matters, but for the sake of completeness I believe it is appropriate that I note that the exercise of power under Part IV of the Act is not one to be taken lightly. It was not intended in this legislation to unduly interfere with the freedom of a testator to decide how his property was to be distributed on his death. In Blair’s Case (supra), Justice of Appeal Chernov, at page 76, referred to the limits of the Court’s power to interfere with testamentary dispositions under the Act. His Honour noted:

“. . . the importance of the principle of freedom of testation and . . . [the]

limited power to interfere with testamentary provisions.”

38        His Honour went on to say that the Court:

“. . . had no jurisdiction to interfere with the terms of the testator’s will unless [it] was satisfied, on the balance of probabilities, that their fulfilment would amount to an abuse of the testator’s freedom of testamentary disposition.”

39        Bearing all of these matters in mind, I am of the view that I do have jurisdiction to make an appropriate order in this case. I believe that the fulfilment of the testator’s wishes, as stated in his Will, would amount to an abuse of his freedom to dispose of his estate as he wished. The fact is that it is clear to me that the testator did not turn his mind as to how his estate should be divided following the gift to the plaintiff of number 5 Jones Street in 1985. Over the years the deceased must have known of the change of circumstances in the plaintiff’s marriage and in her health but did nothing about it as far as his Will was concerned. It is also fair to assume that the deceased would have been aware of the serious deterioration in the defendant’s health as well, but if it was his intention to ensure that the plaintiff got nothing out of his main asset (number 11 The Eyrie), then he did not do anything, as far as his Will was concerned, about it. His Will evinces an intention to distribute the residue of his estate equally between his son and his daughter.

40        I accept that the plaintiff has made out her case as far as showing the need for further provision is concerned.

41        In the circumstances, I believe it is appropriate for me to exercise my discretion so that adequate provision for the proper maintenance and support of the plaintiff may be made out of the estate.

42        Mr Johnson, counsel for the plaintiff, submits that the plaintiff should get half of the value of the property at number 11 The Eyrie and that somewhere between 60 and 40 per cent would not be unreasonable.

43        Mr Sowden, for the defendant, submits that in all the circumstances there should be no order in the plaintiff’s favour.

44        It seems to me that the plaintiff’s claim would be appropriately met if she were to be paid the sum of eighty thousand dollars ($80,000) by way of a legacy from the deceased’s estate and I will so order.

- - -