Valentini v Valentini - [2014] VSC 91

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 04465 of 2012
No. 04682 of 2012
No. 05113 of 2012

MINA VALENTINI (No. 04465 of 2012)

and

ELIO VALENTINI (No. 04682 of 2012)

and

DANA LOUISE JACKSON (No. 05113 of 2012)

Plaintiffs

CARLO JOHN VALENTINI (as executor of the estate of Luigi Antonio Valentini, deceased)

Defendant

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	6-7 FEBRUARY 2014
DATE OF JUDGMENT:	26 MARCH 2014
CASE MAY BE CITED AS:	VALENTINI & ORS v VALENTINI
MEDIUM NEUTRAL CITATION:	[2014] VSC 91

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TESTATOR FAMILY MAINTENANCE – Part IV of the Administration and Probate Act 1958 (Vic) – Applications by estranged adult children of testator – Testator fails in his parental duty giving rise to the estrangement - Moral obligation giving rise to responsibility under s 91(4) to make provision for a person – Section 91 Administration and Probate Act 1958.

WILLS AND PROBATE – Part IV of the Administration and Probate Act 1958 (Vic) – Applications by estranged adult children of testator – Testator fails in his parental duty giving rise to the estrangement - Moral obligation giving rise to responsibility under s 91(4) to make provision for a person – Section 91 Administration and Probate Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff Mina Valentini	Mr S McNab of Counsel	LAW 554
For the Plaintiff Elio Valentini	Mr R Boaden of Counsel	Logie-Smith Lanyon
For the Plaintiff Dana Valentini	Ms C McOmish of Counsel	Beswick Foulkes Family Law
For the Defendant	Ms C K Sparke SC	Rogers & Every

HIS HONOUR:

Background

The Applicants in these proceedings should not feel alone. Testamentary dispositions driven by vindictive emotion and irrational favouritism are well documented in chronicles of the human condition. William Shakespeare described the malady in lines he penned for King Lear, as the king prepared to divide his kingdom and riches between his three daughters:[1]

… Tell me, my daughters,--
Since now we will divest us both of rule,
Interest of territory, cares of state,--
Which of you shall we say doth love us most?
That we our largest bounty may extend
Where nature doth with merit challenge.

[1]William Shakespeare, King Lear Act 1 Scene 1.

Well pleased with their eloquent professions of love and devotion, Lear confers a third of his kingdom to each of Goneril and Regan. He then turns to his third daughter, Cordelia, demanding:

Now, our joy,
Although the last, not least; to whose young love
The vines of France and milk of Burgundy
Strive to be interess'd; what can you say to draw
A third more opulent than your sisters? Speak.

Cordelia finds herself unable to compete with the praise lavished by her sisters, and says only to her father:

Nothing, my lord …
Unhappy that I am, I cannot heave
My heart into my mouth: I love your majesty
According to my bond; nor more nor less.

Lear is dissatisfied with Cordelia’s measured…

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 Valentini v Valentini

Details

AGLC: Valentini v Valentini [2014] VSC 91
Case: [2014] VSC 91
Decision Date: 26 MARCH 2014

CaseChat Overview and Summary

The parties involved in this case were two estranged adult children of a deceased testator, who had applied under Part IV of the Administration and Probate Act 1958 (Vic) for a variation of the testator's will on the basis of the testator's failure in his parental duties, which resulted in the estrangement. The court was required to determine whether the testator's failure to fulfill his parental duties could give rise to a moral obligation to provide for his children under s 91(4) of the Administration and Probate Act 1958.

The legal issues that the court had to decide were whether the testator's failure in his parental duties gave rise to a moral obligation to provide for his estranged children and whether the court should vary the will to make provision for the applicants. The court had to consider the principles of testamentary freedom and the discretion of the court to vary a will, as well as the provisions of s 91(4) of the Administration and Probate Act 1958.

The court found that the testator's failure in his parental duties did give rise to a moral obligation to provide for his estranged children, which could be considered under s 91(4) of the Administration and Probate Act 1958. The court exercised its discretion to vary the will to make provision for the applicants, taking into account the circumstances of the case and the provisions of the Act. The court found that the testator's failure in his parental duties had resulted in the estrangement and that the applicants were in need of financial support. The court varied the will to provide for the applicants and made orders for the distribution of the estate accordingly.

The final orders of the court were that the will of the deceased be varied to provide for the applicants and that the estate be distributed in accordance with the varied will. The court's decision recognised the moral obligation of a parent to provide for their children, even in cases of estrangement, and the discretion of the court to vary a will in accordance with the provisions of the Administration and Probate Act 1958.

Orders