An enormous case with just about everything but the kitchen sink.

Facts

The Deceased was 98 year old widow. She was survived by her 6 children:

• Connie
• Rose
• Tony
• Dominic
• Joseph (who suffered from a disability)
• John

She was an Italian immigrant and spoke only broken English.  She spoke a particular Italian dialect, but could understand others.  She was illiterate in all languages.

Her estate consisted of:

Asset	Value
No 7 Bossley Park	$1,775,000.00
No 6 Bossley Park	$945,000.00
Smithfield property	$1,050,000.00
Kemps Creek Property	$6,950,000.00
ANZ Bank Account	$107,018.00
Total	$10,827,018.00

After tax considerations were applied and the net value of the estate estimated at $10,599,258.

She signed her will with a mark, and there was evidence that her cognition decline, prior to her death.

Her 2009 will provided for:

• No 6 Bossely Park Property to Joseph, subject to a protective trust for his lifetime, with the remainder persons to be Joseph’s children, and if he had none, then such of the Deceased’s children then living
• No 7 Bossley Park to Rose and Connie
• Smithfield property to Tony
• Kemps Creek property to pass to Dominic and John;
• the residue of the estate equally to all 6 children, with Joseph’s share was to be held on a protective trust (given his disability);

The will included the appropriate attestation clause.

Judgement involving 3 interrelated proceedings concerning the Deceased’s estate

• Probate Proceedings;
• Constructive Trust Proceedings
• FPA proceedings

Probate Proceedings

The probate proceedings centred on:

• whether the Deceased had capacity;
• whether she knew and approved of her Will (she signed with a mark and had limited education and English language skills);

Ultimately, Hallen J found the Deceased had capacity and that she knew and approved of her will

The Constructive Trust Proceedings

• Involved a claim in equity by Dominic and John over the Kemps Creek Property.
• They asserted they had been asked to live there to be closer to the family and each had improved it and lived on it for over 30 years, and promises were made it would be theirs in the future

Ultimately, Hallen J found that the claim had been made out.

It appears the claim was made in the alternative to the probate proceedings, such that if they were successful the trust claim was not pressed.

Thus, because Hallen J found that last will was valid, the Kemps Creek property remained in the estate.

Family Provision Applications

Further provision was sought by Joseph, as well as Dominic and John (as to the latter, in addition to their trust claims).

Joseph’s FPA

It was accepted that the provision for Joseph of a life interest in a house was not adequate provision;

The issue of the availability of social security and other government benefits and their impact upon an FPA applicant is a vexed question.

Hallen J noted that the community would expect the Deceased to make adequate provision for a disabled child, especially where the estate was large.  And not left at risk (present or future) of having to fend for herself or be at the mercy of the kindness and charity of family and friends.

He then said at [1019]:

The availability of a pension to an applicant ought not be regarded as a substitute for the obligation on the deceased, particularly where the value of the estate is large, to make adequate provision for him. Yet, it is not necessary to make an order that would operate primarily in relief of the taxpayer. In my view, it not being submitted to the contrary, the availability of the disability pension, and associated social benefits, is a circumstance to which the Court should have regard even bearing in mind the value of the deceased’s estate.

at [1019]

Dominic & John’s FPA

Although Dominic and John sought provision in addition to their provision under the 2009 will (and the trust claims), Hallen J indicated that he would not have made further provision for them (in addition to the Kemp Creek property).

Other matters

In addition to the resolution of the substantive disputes between the parties, a number of other issues were canvassed in the judgement, including:

• Whether a solicitor who is a material witness should act for a party, particularly in a probate dispute;
• “Collusion” in the preparation of affidavit material

Solicitors as material witnesses

The solicitor who drew the will, Mr Puleo, also acted for the executors.

The matter was the subject of correspondence between the parties from as early as October 2020.

At a directions hearing in Jun 2021, when learning of the situation Hallen J said:

“How can he attend conferences and the like in relation to the conduct of proceedings if he is a witness and instructions are being given by other witnesses”?

…

“If he has adopted a completely independent approach, that is to say someone else in his office is running the conferences and giving instructions, etc that is one thing, but to avoid embarrassment to him, you have better let [the other legal reps] know whether he has done that because it is going to be a bit of a problem if he hasn’t.

at [272]

On 29 July 2021, Mr Puleo’s son took over carriage of the matter.

Hallen J further said:

“I have carefully considered the criticisms made of Mr Puleo by counsel for Rose. He should not have acted for Dominic and John, as their solicitor in the contested proceedings, and certainly not after it was pointed out by Ms McIntyre. He should have more carefully considered his position once it became clear that he was going to be a material witness.

The case contains (at paragraphs 265 to 294) detailed commentary about why such a situation should be avoided.

Ultimately, however, Hallen J was satisfied that the solicitor had not prejudiced the administration of justice.

“Collusion” in relation to affidavit material

The preparation of affidavit material that is completely (or at least substantially) identical

• often occurs in estate matters;
• while the practice is understandable, it should be avoided;

Why?

Hallen J, quoting Black J in Colorado Products Pty Ltd (2014) 101 ASCR 223

“ … identical affidavits substantially devalued the weight to be given to the affidavit of each witness to the point where neither’s affidavit evidence could be treated as reflecting a genuine individual recollection of events as distinct from a collective reconstruction”.

Read the decision here.