Plaintiff v Defendants

2 The deceased, Angelo Marotta died on 30 June 2010leaving a will dated 15 June 2006.

3 On 24 November 2010 probate of the will was granted to the defendants, Angelo's sisters, Stella Leone and Nella Vido, the executrixes.

4 Angelo left an estate compromising assets valued at $1,257,094.26 with liabilities of $3,907.44. The main assets in his estate are a property located at 13 Collins Street, Thornbury, valued for Probate at $950,000; funds in an MLC Limited account in Queensland valued at $276,919.37; and personal estate valued at $30,154.48.

5 Pursuant to the deceased's will, he left the plaintiff, Filomena Wollensack, a legacy of $10,000.

7 Angelo and Filomena were part of a family comprising five daughters and three sons. The family comprised:

Angelo who died at 75 years of age;

Serina who is aged 84;

Sebastian who died at the age of 66 years;

Pina Leone who is aged 75;

Filomena Wollensack who is aged 70;

Angelo, the deceased, who died at the age of 66 years;

Risolba who is aged 65; and

Ottavio who is aged 61.

• all my right title and interest in my house and land at 13 Collins Street, Thornbury ... together with my remaining person chattels as defined by section 5 of the Administration and Probate Act to my niece Stella Leone if she survives me absolutely;

• $10,000 to his sister Filomena Wollensack and $10,000 to his sister Pina Leone;

• after funeral and testamentary expenses the residuary estate to his sister Rosalba Marotta, brother Ottario Marotta, nephew Paul Leone and niece Nella Leone, in equal shares.

9 The defendants do not contest Filomena's evidence as deposed to in her affidavit sworn 10 May 2011.

10 Filomena migrated to Australia from Italy in 1965. Her brother Sebastian and sister Pina migrated before she and Angelo migrated in 1968.

11 Filomena married six months after arriving in Australia and had five children from the marriage. Filomena separated from her husband in 1980 and they divorced in 1981.

12 At the time of the marriage break-up, Filomena's children were aged 16, 15 (twins), 14 and 10.

13 Filomena received no maintenance from her husband and only a few thousand dollars as a property settlement. At the time Filomena was not working and was dependent upon the widow's pension.

14 Filomena describes her relationship with Angelo as: "I always had a good and close relationship with Angelo and he had a good relationship with my children. We had been close in Italy and when he came to Australia we became closer because he only had my sister and brother and me here."[1]

15 Angelo never married and worked for State Trustees.

16 Angelo and Filomena had regular contact. After she separated from her husband in 1980 Angelo "would give me some financial assistance. He would buy food and vitamins and he volunteered to pay some of my bills. He would do all of this without me asking him to do so. He would visit my home every two months or so and we would go to his house every three months or so. We would speak on the phone once a week."[2]

17 Angelo helped with her children. To some extent Angelo stepped into her husband's shoes and performed the role of father to her children in many ways.

18 Filomena describes a breakdown in her relationship with her sister which occurred some 20 years' ago when she was living next door to her. Filomena says that this caused problems and limited the extent of Angelo's visits.

19 Filomena was struck by a motor vehicle in 1980 and suffered serious injuries.

20 In 1984, Filomena loaned Angelo approximately $7,000 to enable him to buy a house. This was all the money she had at the time but that she was happy to loan it to Angelo. Angelo repaid the money without interest about two years later.

21 Filomena re-married in 1988 but it only lasted 18 months. She lived in the USA in that time. During the period of her second marriage Angelo lived in Australia and provided financial and emotional assistance to her sons if they needed it.[3]

22 The evidence in relation to the financial situation of the beneficiaries is contained at paragraph 21 of Filomena's affidavit.

As far as I am aware, the financial situations of the beneficiaries are as follows:

(a) Stella Leone owns two houses, her home and a property at Phillip Island. She is single and is aged 58 years.

(b) Risolba Marotta and Ottavio live in Italy. They live in our parents' house and have done so since our parents died many years ago. I have never received any inheritance from my parents, given that they remain in the home.

(c) Paul Leone owns two or three houses and is well off financially.

(d) Nella Leone owns her own home and is well off financially as far as I am aware.

(e) Pina Leone owns her own house in Thornbury.

23 Filomena has no assets of any significance. She lives in rented Housing Commission accommodation and receives a pension of $580 per fortnight after rent is deducted.

24 The defendants' essential submission is that Filomena is not a person for whom her deceased brother had responsibility to make provision in his will and accordingly the Court has no statutory authority to make provision for her under s 91(1) of the Administration and Probate Act 1958.[4]

25 The defendants submit that the jurisdiction of the Court to make such provision is limited to the extent that:

(a) The class is limited to claimants, who although not among the deceased's family, nevertheless, had a moral claim to the deceased's estate;[5]

(b) The power to alter the terms of the will is discretionary, both as to what provision is made and as to whether provision will be made at all. In doing so, the Court must have regard to s 91(4)(e) to (p). In exercising such a discretion, it was never meant that the court should re-write the will of the testator;[6]

(c) The object of an order is not to make alternative or larger gifts or display familial generosity but to meet testamentary obligations;[7]

(d) when an order is made, the provision is to be the minimum necessary to discharge the deceased's breach of moral duty and no more.[8]

26 Underpinning the limitations, is the principle of freedom of testation, which has its genesis as the fundamental principle of private property.

27 The defendants submit that in relation to this case, without special circumstances, siblings are not ordinarily regarded natural objects of testamentary bounty.

28 The defendants rely on the decision in Marshall v Spillane[9] in which His Honour Byrne J made an order for further provision for a brother who was found to have enjoyed a relationship with his sister as a "dutiful son" and "a loving mother".[10]

29 The defendants also relied on the decisions of Sanderson v Bradley.[11] This was a claim by a sister that provision be made out of the estate of her deceased brother for her proper maintenance and support. In Sanderson's case, Balmford J found there was no responsibility on the part of the deceased to make provision for his sister. Her Honour noted that at the time of making her decision there had only been one decided case where the applicant was a sibling of the deceased, Marshall v Spillane.[12] Her Honour noted:

In Marshall v Spillane [2001] VSC 371 Byrne J made an order under s 91 in favour of a brother of the deceased. He found that over the whole period of their joint lives the brother had acted towards his sister as a dutiful son would have done and she acted towards him as a loving mother would have done, and that the brother had discharged the burden of showing that his sister had a responsibility to make provision for him. The circumstances of that case are far removed from those before me and I do not find it to be of any assistance. Nor did I find assistance of authorities of other jurisdictions where the corresponding legislation is differently expressed.

Having regard to the several matters listed in s 91(4), I cannot find the deceased had responsibility to make provision for the plaintiff. Theirs was a normal sibling relationship, less close than many such. I find nothing in the evidence to indicate that the deceased had any such responsibility.[13]

30 The defendants submit that Filomena's affidavit goes no further than establishing that she had a good and close relationship with her brother.

31 The defendants accept that Filomena had a longstanding and loving relationship with her brother and that not surprisingly her brother left her money in his will.

32 The defendants submit that even though money was left to Filomena that in itself does not imply an obligation was owed to her by her brother. The defendants note that this submission was made and rejected by His Honour Associate Justice Mukhtar in Jackson v Newns.[14]

33 The defendants submit that there is nothing in Filomena's evidence to establish an assumption of responsibility by the deceased to maintain Filomena or actions or contributions on Filomena's part that would create such a responsibility. The relationship between the siblings in Marshall v Spillane was akin to a son and mother relationship and the plaintiff's evidence in this case does not establish such a relationship.

34 The defendants submit that while Jackson v Newns concerned a will which made some substantial provision for the plaintiff, it is not a point of distinction. They rely on paragraph 59 of Associate Justice Mukhtar's decision, that the primary basis of the decision was the issue of whether any responsibility was owed, not whether it had been discharged. His Honour at paragraph 59 said:

I think it is inevitable a court will find that the principle of testamentary disposition will prevail and that having regard to all of the factors in s 91(4) the deceased did not have a moral responsibility to the plaintiff, but even if he did, the provision that has been made for him under the will is adequate.

1. Section 91 of the Administration and Probate Act 1958 contemplates claims under Part IV by parties not related to the deceased either by blood or marriage;
2. the plaintiff was related by blood and adult siblings claims have been known to succeed;
3. the plaintiff relies upon the decision of Marshall v Spillane [2001] VSC 371;
4. having regard to whether the deceased had a responsibility to make provision, the Court must have regard to the factors listed in s 91(4)(e) - (p), including any other matter the Court considers relevant;
5. during his life time the deceased had assumed a level of responsibility to maintain the plaintiff;
6. the decision in Jackson v Newns is distinguishable in that:

(i) the relationship was that of nephew and uncle;

(ii) the plaintiff had significant financial resources;

(iii) the plaintiff was already the beneficiary of a substantial bequest;

(iv) the deceased did not accept any paternal responsibility or other responsibility which might lead a court to conclude there was a moral duty;

(v) support provided in the deceased's lifetime in Jackson v Newns was emotional rather than financial. The relationship was no more than an affectionate and enduring relationship;

(vi) Associate Justice Mukhtar considered the plaintiff's case in Jackson v Newns to be "practically hopeless". This is to be contrasted to the facts of this case where it is submitted by the plaintiff that the Court cannot be satisfied that there is a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial;

1. even if enlivened, the discretion afforded by s 63 of the CPA should be exercised with extreme caution. The plaintiffs rely upon the decision of Atthow v McElhone [2010] QSC 177 per Applegarth J.

36 In Atthow's case, His Honour Applegarth J considered summarily dismissing an application for provision from the deceased's estate. His Honour concluded that the plaintiff's claim for provision to be made in her favour out of her mother's estate seemed "practically hopeless". His Honour noted:[15]

Even assuming relevant factual disputes would be resolved in K [the plaintiff's] favour at any trial it is extremely hard to see any basis to conclude that the deceased at the time of her death in fact had an obligation to make provision for the proper maintenance and support of K. K's application amounts to little more than a contention that an obligation was owed to her because she was, after all the deceased's daughter and because her siblings had always been favoured by her mother.

His Honour went on to note that even though the claim appeared practically hopeless, exercising the extreme caution that it is appropriate to applications for summary judgment, he declined to exercise this discretion to summarily terminate the proceeding. For reasons discussed further on, I do not agree with his Honour's approach in Athour's case.

37 In order for the defendant to succeed in its application for summary judgment, they must satisfy the Court that the plaintiff's claim has no real prospect of success.[16]

38 Even where the Court assesses that s 63 of the Civil Procedure Act may apply, it may refuse an application for summary judgment under s 64 because: (a) it is not in the interests of justice to do so; or (b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

39 The defendants rely on the decision of Dixon J in Ottedan Investments Pty Ltd v Portbury Developments Pty Ltd and Anor[17] in which his Honour provided a helpful discussion on the new summary judgment provisions in the Civil Procedure Act. His Honour provided a summary of the principles applicable to summary judgment pursuant to s 63 of the Civil Procedure Act 2010:

1. If a proceeding or defence, or any particular claims, cause or action or ground of defence ("claim") is hopeless, untenable, bound to fail, or could not possibly succeed, then it ought to be summarily dismissed. In other words, a claim that ought to be dismissed under the old test will be dismissed under s 63, however, is less stringent.
2. It does not direct an enquiry into whether a certain and concluded determination could be made that the proceeding, or claim would necessarily fail. What is required is a practical judgment by the Court as to whether a claim has more than a "fanciful" prospect of success.
3. The Court's discretion whether to exercise the power of summary dismissal is very wide. Section 64 of the Act expresses that the power is based on a consideration of the interests of justice. The Act provides direction in Part 2.1. The discretion is to be exercised to facilitate the just, efficient, timely and cost effective resolution of the real issues that are in dispute between the parties. The Court's powers in furthering the overarching purpose are facilitated by having regard to the objects and matters set out in s 9 of the Act.
4. The Court must be satisfied, on an interlocutory application that there is no real prospect of success in a civil proceeding but nevertheless consider the dispute to be of such a nature that only a full hearing on the merits is appropriate. Whether a full hearing on the merits is appropriate is a relevant discretionary consideration in the circumstances of each proceeding.
5. The power to order summary dismissal is to be exercised with great care, as a trial upon evidence of issues raised is the well settled approach to the determination of litigation. When proceeding on a summary application to assess the prospects of success, a judge ought to feel confident that an assessment can be properly made on whether the overarching purposes facilitated on dismissal of the impugned claim.
6. That argument directed to the issues relevant on the application, perhaps even extensive submissions, may be necessary to demonstrate that the case of the plaintiff has no real prospect of success is not ordinarily a relevant consideration.[18]

40 Further to these points, I consider that the less complex the issue in a case then the easier it is for the Court to find that such a claim is capable of determination on summary judgment.

41 Having said that, claims under Part IV of the Administration and Probate Act 1958 involve the Court's evaluation of the testator's moral duty and the exercise of a discretion. As Mukhtar AsJ noted in Jackson v Newn, the exercise of such a discretion involves "some value judgment" and means ordinarily family claims are best left to trial to determine their sustainability.[19]

42 The defendants accept the plaintiff's evidence. There is no affidavit in opposition.

43 The question for the Court is whether, on the plaintiff's own evidence, she has a real prospect of success to establish that she was a person for whom her brother had a responsibility to make provision for her proper maintenance and support. The defendants say there was no moral duty.

44 Angelo provided emotional support and some financial support to Filomena. The extent of the financial support is not clear. It is not clear if financial assistance continued after Filomena and her sister had a falling out.

45 The emotional assistance provided by Angelo included support of Filomena's children who did not have a father figure. This support continued even when Filomena lived in the USA in 1988.

46 Regrettably, the evidence in relation to the financial assistance and emotional support provided by Angelo to Filomena is equivocal.

47 The relationship between Filomena and the deceased on the evidence was not one of a dutiful son and a loving mother as in Marshall v Spillane, however it appears to be more than the relationship between the siblings in Sanderson v Bradley. Whether the Court should interfere with the deceased's testamentary freedom in this case will turn on the particular circumstances of the case. The difficulty is that on the state of the evidence as it is before me, I am not satisfied that there is no real prospect of success.

48 Put another way, I am not satisfied on the evidence that the prospects of Filomena's claim succeeding are fanciful rather than realistic. The issue of financial assistance and emotional assistance, go to the nature of the relationship between Angelo and Filomena; whether Angelo had any responsibility to Filomena; and whether Angelo had assumed any responsibility to maintain Filomena. These are just three aspects of the matters the Court must consider when determining whether Angelo had a responsibility to make provision for Filomena.

49 The extent and degree of the financial support needs to be further investigated. The fact that this is a sibling relationship does not rule the relationship automatically in or out of Part IV of the Administration and Probate Act 1958. An ordinary sibling relationship will not in the absence of special circumstances provide a basis for interference with testamentary freedom. The evidence suggests that Filomena as a single mother relied upon the deceased for support for significant periods of time. The deceased not having a family of his own appeared to be in a position to provide such assistance. The degree of that assistance and what if any obligation it created between the deceased and the plaintiff is a matter which to my mind needs to be investigated at trial.

50 If there was no evidence before the Court in relation to financial and emotional assistance then it would be appropriate for the matter to be summarily dismissed. I do not agree with the approach adopted by his Honour in Atthow v McElhone.[20] To do so would undermine the intention of the Civil Procedure Act and to my mind would be in contravention of the overarching obligations.

51 I do not consider that it is inevitable that the Court will find that the principle of freedom of testamentary disposition will prevail and that having regard to all the factors in s 91(4)(e) to (p), the deceased did not have a moral responsibility to the plaintiff. Further, even though provision has been made for the plaintiff to the extent of a legacy of $10,000, I am not satisfied that if it is determined that the deceased had a moral responsibility to the plaintiff that such a legacy would be adequate.

52 Accordingly, I dismiss the defendants' application for summary judgment.

[1] Affidavit of Filomena Wollensack sworn 10 May 2011 at [12].

[2] Affidavit of Filomena Wollensack sworn 10 May 2011 at [14].

[3] Affidavit of Filomena Wollensack sworn 10 May 2011 at [26].

[4] Schmidt v Watkins [2002] VSC 273.

[5] Schmidt v Watkins [2002] VSC 273 at [9].

[6] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at p. 19 per Dixon J.

[7] Blore v Lang [1960] HCA 73; 104 CLR 124 at p. 35 (per Menzies and Fullagar JJ); Tsivinsky v Tsivinsky (unreported NSWCA 5 December 1991), Mahoney JA at p. 43.

[8] Clifford v Mayr [2010] New South Wales Court of Appeal, 6 (per Campbell JA at 148) and McKenzie v Topp [2004] VSC 90 at p. 63 per Nettle J.

[9] [2001] VSC 371.

[11] [2004] VSC 231.

[12] [2001] VSC 371.

[13] Sanderson v Bradley [2004] VSC 271 at [33] and [34].

[14] [2011] VSC 32 at [54].

[16] Section 63 Civil Procedure Act 2010.

[17] [2011] VSC 222.

[19] Jackson v Newns [2011] VSC 23 at [11].

[20] [2010] QSC 177.