Doriana Mary Jones & Anor v Mauro Poletti [2014] NSWSC 715

Doriana Mary Jones & Anor v Mauro Poletti [2014] NSWSC 715

Adequate provision had not been made for either plaintiff because each was an eligible adult child who received nothing under the will, each had demonstrable financial need, and the estate was sufficient to make provision. The estrangement did not bar relief because it was partly continued by the deceased's own conduct and the defendant's conduct, although it warranted a reduction in what would otherwise have been awarded. The defendant had a significant moral claim arising from support given to the deceased, especially in the last six years of life and in preserving estate assets, but that claim was materially less than the asserted $3 million and did not justify excluding the...

Jurisdiction
Australia
Judgment Date
04 June 2014
Procedural Posture
Family Provision Application Under Succession Act 2006 (nsw), S 59 / Principal Judgment After Hearing
Outcome
Order for provision made in favour of the plaintiffs; each plaintiff to receive a legacy of $450,000 from the deceased's estate, together with forgiveness of her debt to the estate.
Legal Topics
['family Provision' 'adequate Provision for Adult Children' 'estrangement' 'moral Debt to Beneficiary' 'deceased Estate']
['succession' 'equity'] ['family Provision' 'adequate Provision for Adult Children' 'estrangement' 'moral Debt to Beneficiary' 'deceased Estate']

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Procedural Posture

Family Provision Application Under Succession Act 2006 (nsw), S 59 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the plaintiffs, as daughters of the deceased, were eligible persons entitled to apply for family provision.' 'Whether adequate provision had been made for the proper maintenance, education or advancement in life of each plaintiff when the will left them nothing.' 'Whether the lengthy estrangement between each plaintiff and the deceased should prevent or reduce provision.' "Whether the defendant's financial contributions to the deceased gave rise to a moral debt affecting the size of any provision." 'What form and amount of provision should be ordered from the estate.']

Ratio Decidendi

Adequate provision had not been made for either plaintiff because each was an eligible adult child who received nothing under the will, each had demonstrable financial need, and the estate was sufficient to make provision. The estrangement did not bar relief because it was partly continued by the deceased's own conduct and the defendant's conduct, although it warranted a reduction in what would otherwise have been awarded. The defendant had a significant moral claim arising from support given to the deceased, especially in the last six years of life and in preserving estate assets, but that claim was materially less than the asserted $3 million and did not justify excluding the...

Court Disposition

Order for provision made in favour of the plaintiffs; each plaintiff to receive a legacy of $450,000 from the deceased's estate, together with forgiveness of her debt to the estate.

Orders

  • ['Order that there be provided out of the estate of the deceased Ubaldo Poletti to each of the plaintiffs the sum of $450,000, and their respective debts to the estate should be extinguished.' "Order that the plaintiffs' costs of these proceedings be paid out of the estate on the ordinary basis." "Order that the...