Estate of Scalone; Scalone v Diaconu

This judgment resolves two applications for family provision orders under the Succession Act 2006 (NSW) (the Act) out of the estate of the late Pantaleo Scalone (the Estate). In this judgment, all references to legislation are references to the Act unless otherwise indicated.

Pantaleo Scalone (the Deceased) died on 1 June 2019. He was survived by his three children, his second wife and other family members. The Deceased left a final will made on 23 March 2015 (the Will).

The plaintiffs, Vincenza (Enza) Scalone and Emanuele Scalone are the two eldest children of the Deceased. For convenience and without any disrespect intended, in these reasons I will refer to the plaintiffs and other members of the Scalone family by their given names.

The defendant in these proceedings is the Deceased’s second wife, Maria (Marianna) Diaconu, who is also the executor of the Estate. On the first day of the hearing before me, the plaintiffs sought the following orders, which the Court made by consent on 8 June 2021:

The case as pleaded sought both orders for family provision and declarations of unconscionability, undue influence and lack of capacity in relation to various transactions. Before the trial, Ms Diaconu conceded that the Will did not make proper and adequate provision for the plaintiffs. On that basis, the plaintiffs pressed only their family provision claims at the hearing before me.

In light of Ms Diaconu’s concession, the issue for the Court to resolve in these proceedings was the provision which should be ordered for the plaintiffs under the Act. A secondary issue was whether the only substantial available asset, being the property at XX Fairlawn Avenue, Turramurra (the Fairlawn Avenue Property), should be designated as notional estate. The Court’s conclusions on these issues can be summarised as:

The plaintiffs were represented by Mr J Brown of Counsel and Ms C Coventry of Counsel. The defendant was represented by Ms T Catanzariti of Counsel.

While there were matters about which the parties disagreed, the essential facts were for the most part not in dispute. It is neither practicable nor necessary to set out in detail every issue raised by the parties. Attention is given to those which the Court considers dispositive. To the extent that any facts set out below were not agreed by the parties, I am satisfied they could not be sensibly disputed. There were no essential facts in dispute that required the Court to make credit findings about the protagonists.

The Deceased was born in Italy in July 1932. He migrated to Australia and, in 1958, he married his first wife, Angela. They had three children together: Enza (now aged 60), Emanuele (now 59) and Giuseppina (now 46). Giuseppina did not participate in these proceedings.

Angela and the Deceased raised their children in a home on Gilroy Road, Turramurra (the Gilroy Road Property). The children lived at home and were supported by their parents until they finished their studies. All three children received a university education.

In 1986, when she was around 25, Enza moved to Italy to study music. While in Italy, she met and married her husband, and decided to remain in Italy permanently. Enza returns to Australia every few years to visit.

In 1988, Emanuele purchased a block of land. The Deceased provided him with $55,000 to help him build a home on the land. Emanuele said that he had repaid his father this amount, but it is not necessary to resolve this issue.

In 1993, the Deceased and Angela sold a property they owned and used the funds to purchase a home for Giuseppina.

In 1995, Angela died suddenly, having just returned home with the Deceased from her own mother’s funeral. Her death came as a shock to the entire family. The Deceased struggled to cope in the months and years that followed. The whole of Angela’s estate, including her share in the Gilroy Road Property, passed to the Deceased.

After Angela’s death, Emanuele would visit the Deceased for dinner on Wednesday nights, and on Saturday nights with his wife and children. After his separation from his wife in 2016, Emanuele would visit the Deceased for dinner on Monday nights, and drop in on the weekend. He and his family would also celebrate special occasions with the Deceased at the Gilroy Road Property, including Easter, Christmas, birthdays, long weekends and Feast Days.

The Deceased retired in 2000. Not long after, he commenced what was to be a 10 year relationship with Maria Del Boccio.

The Deceased travelled to Italy every few years. When he travelled to Italy, he would leave the keys to the Gilroy Road Property with Emanuele. While in Italy in 2011, the Deceased met Ms Diaconu. When visiting Enza in Italy on that trip, the Deceased and Enza had an argument.

In 2012, the Deceased returned to Italy and, having ended his relationship with Ms Del Boccio, asked Ms Diaconu to join him in Australia. Ms Diaconu accepted and in 2013, they were married. They remained together until his death. The plaintiffs accepted that the Deceased was very happy in his marriage with Ms Diaconu and that she cared for and supported him until his death six years later.

In 2014, Emanuele’s eldest son turned 21. To celebrate, his son had a small dinner with friends at a pub rather than a birthday party.

On 17 March 2015, the Deceased met with a solicitor about preparing a new will. The solicitor’s file note from the meeting includes:

On 23 March 2015, the Deceased made the Will and executed a statutory declaration (the Statutory Declaration). The Will appoints Ms Diaconu as the sole executor and trustee of the Estate. The Will provides:

The Statutory Declaration includes:

In April 2015, the Deceased and Ms Diaconu travelled to Italy and Romania. For the first time, the Deceased did not leave his house keys with Emanuele and he did not contact Emanuele to let him know he had arrived safely. The Deceased did not visit Enza while he was in Italy.

In May 2016, Enza visited Australia and spent time with the Deceased, Ms Diaconu and Emanuele at the Gilroy Road Property.

In mid-2016, the Deceased filmed his own video eulogy, of which the first half (to the point indicated by asterisks in what follows) was played at his funeral (the Eulogy Video). The transcript of the Eulogy Video includes (translation):

In July 2017, the Deceased was admitted to hospital. On 3 and 4 July, Emanuele visited him. The Deceased told Emanuele that he intended to leave everything to Ms Diaconu. Emanuele asked whether that included the family home and the Deceased replied to the effect of: “That’s all I have.” Emanuele later told Enza what the Deceased had said.

The Deceased was discharged from hospital about a week later. Emanuele visited the Deceased at home and they had a disagreement about the Deceased’s plan to leave everything to Ms Diaconu.

A few days later, Emanuele met with Ms Diaconu in a park. He told Ms Diaconu that the Deceased planned to leave everything to her. Ms Diaconu indicated that she was not aware of that (Tcpt, 9 June 2021, p 215(7–15)). Emanuele expressed his unhappiness with the Deceased’s plan, and told Ms Diaconu that he “wanted things to be done right”. He said that each of the Deceased’s three children should receive a third of the family home (Tcpt, 9 June 2021, p 216(12–34)).

Emanuele visited the Deceased at home for the Deceased’s Feast Day on 27 July 2017. It was a short visit, but they shared a hug before Emanuele left. This was the last time Emanuele saw the Deceased. Enza also rang the Deceased for his Feast Day. Enza described their call as her last proper conversation with the Deceased, although she spoke to him on other occasions.

The following week, Emanuele tried to visit the Deceased but he was not home. Emanuele rang later, but Ms Diaconu informed him that the Deceased did not want to speak to him. When he pressed Ms Diaconu to put the Deceased on the phone, Emanuele heard the Deceased in the background say that he did not want to speak to Emanuele.

On 2 November 2017, the Deceased and Ms Diaconu met with a new solicitor, Maria Di Giovanni, about selling the Gilroy Road Property and estate planning. Ms Di Giovanni’s file note of the meeting includes:

Contracts for the sale of the Gilroy Road Property were exchanged in November 2017.

Over the course of 2018, the Deceased was repeatedly admitted to hospital.

In February 2018, the Deceased and Ms Diaconu had telephone conversations with Ms Di Giovanni about purchasing the Fairlawn Avenue Property. Contracts for the purchase were first exchanged in Ms Diaconu’s name only, because the Deceased was in hospital.

In April 2018, a relative informed Enza that the Deceased had sold the Gilroy Road Property and that Enza, Emanuele and Giuseppina would miss out on receiving their mother’s share.

Around May 2018, the sale of the Gilroy Road Property and the purchase of the Fairlawn Avenue Property settled. The Fairlawn Avenue Property was ultimately purchased in both the Deceased and Ms Diaconu’s names as joint tenants.

The Deceased and Ms Diaconu instructed Ms Di Giovanni to hold the surplus proceeds of sale of the Gilroy Road Property (approximately $1,700,000) to pay builders for planned work on the Fairlawn Avenue Property. The building contract ultimately signed was for $1,300,000.

In July 2018, Enza rang her father for his birthday and Feast Day.

In August 2018, Enza sent a handwritten letter in Italian to the Deceased’s sister-in-law, Orsolina. In September 2018, Enza sent copies of her letter to Orsolina to the Deceased’s niece, nephew, other sister-in-law and a family friend. There is no evidence that the Deceased was ever made aware of this letter, which read (translation):

On 30 October 2018, the Deceased and Ms Diaconu met with Ms Di Giovanni. Ms Di Giovanni said that her firm would not administer the building contract for the Fairlawn Avenue Property. Ms Diaconu, with the Deceased’s assent, gave instructions to Ms Di Giovanni to transfer the $1,700,000 proceeds of sale of the Gilroy Road Property to a new bank account in Ms Diaconu’s name. Ms Diaconu spent approximately $1,500,000 of those funds on work on the Fairlawn Avenue Property.

Enza rang the Deceased briefly for Christmas in 2018. This was the last time Enza spoke to the Deceased.

On 22 February 2019, Emanuele consulted a lawyer about the Will.

On 6 May 2019, the Deceased and Ms Diaconu signed a building contract for $1,300,000.

On 24 May 2019, the Deceased’s nephew texted Enza and Emanuele to tell them that the Deceased was dying and in palliative care. Enza and Emanuele communicated with each other and various relatives. They did not contact Ms Diaconu. Enza remained in Italy and Emanuele did not visit the Deceased in hospital. Their evidence was that they were upset and unsure about how the Deceased would react if they went to see him.

The Deceased died on 1 June 2019.

Emanuele attended the Deceased’s funeral. He arrived after the mass had begun and left before it ended. He did not sign the condolence book nor send flowers to Ms Diaconu.

Enza was in Italy and was not present at the Deceased’s funeral. She made a charitable donation in the Deceased’s memory.

The first half of the Eulogy Video was played at the funeral. Enza and Emauele were not aware that the Deceased had made the Eulogy Video until the funeral. The second half, in which the Deceased addressed himself to his children, was not played at the funeral. Enza and Emanuele received a copy and transcript of the full Eulogy Video for the first time after commencing these proceedings.

Enza gave evidence that when she found out that the Eulogy Video was played at the funeral, she was upset that their childhood photos were shown publicly. She rang the funeral director to ask who prepared the Eulogy Video and authorised the use of the photos. When a copy of the funeral card was posted to Enza, she returned it.

On 8 October 2019, Enza and Emanuele commenced these proceedings.

The actual Estate comprises:

It appears the Estate has not yet paid any funeral or testamentary expenses, however there was no evidence before the Court of the amount of those outstanding expenses.

The property which Ms Diaconu recorded as notional Estate comprises:

Three issues arose in relation to the notional estate:

I return to [54(2)] at [136] below.

The parties disputed the value of the Fairlawn Avenue Property. The Fairlawn Avenue Property has five bedrooms and five bathrooms. The Deceased and Ms Diaconu planned to use it as a boarding house to generate income and were undertaking renovation works for that purpose. Ms Diaconu oversaw those works, which remain partially unfinished. Ms Diaconu did some of the work herself.

Two registered valuers gave evidence in the proceedings. They agreed on the value of the land but reached slightly different conclusions about building costs. They ultimately agreed that a reasonable valuation for the Fairlawn Avenue Property in its condition at the time of the hearing was $4,000,000, with a 10 per cent ($400,000) margin of error.

It was submitted for the plaintiffs that the Court should find that the value of the Fairlawn Avenue Property was at least $4,200,000 at the time of the hearing, and that it would be $4,500,000 when the outstanding works are completed. It was submitted for Ms Diaconu that the sum available as notional estate if the Fairlawn Avenue Property were to be sold would be lower, because of the costs of repairs, sale and commission.

The figure for current value propounded on behalf of the plaintiffs falls within the range agreed upon by the valuers. As to the value after completion, the Court is not in a position to speculate about the future value of the Fairlawn Avenue Property if and when further works are undertaken. The evidence does not enable the Court to determine the standard to which works may be completed in the future, nor the time of completion and the market conditions at that time. These were key factors which the valuers identified as affecting the value of the Fairlawn Avenue Property. Although Ms Diaconu indicated that she intends to complete the works, whether she is in fact able to do so will depend on, among other things, whether she will be required to sell the Fairlawn Avenue Property as a result of these proceedings.

In any event, the highest figure for which the plaintiffs contended is $100,000 above the current range identified by the valuers. In the facts of this case, such a comparatively small difference would not bear meaningfully on the Court’s determination of Enza and Emanuele’s family provision claims. Accepting the valuers’ evidence (see [57]), the Court finds that current value of the Fairlawn Avenue Property is $4,000,000.

Turning to [54(3)], the plaintiffs contended that the net proceeds of sale of the Gilroy Road Property were available to be designated as notional estate because the Deceased gave a half share in the net proceeds to Ms Diaconu, with the intention of denying or limiting any family provision claims against those funds (s 80(2)(a)).

The plaintiffs did not identify a particular transaction by which they contended the Deceased gave the half share of the net proceeds of sale of the Gilroy Road Property to Ms Diaconu. They also did not point to any evidence that the Deceased entered into that particular transaction with the intention of denying or limiting any family provision claims which could be made against the Estate. While there was evidence that the Deceased chose to purchase the Fairlawn Avenue Property as joint tenants with Ms Diaconu to ensure that she inherited it — including by limiting any family provision claims his children could bring — in the absence of other evidence that is insufficient to support a finding about the Deceased’s intentions for the net proceeds of sale of the Gilroy Road Property.

In any event, the question is academic because the net proceeds of sale of the Gilroy Road Property appear to have been almost entirely spent, principally on renovating the Fairlawn Avenue Property. As a result of the work done using the proceeds of sale, the value of the Fairlawn Avenue Property increased from just over $2,000,000 at the time of purchase to $4,000,000 at the time of hearing. Effectively, the balance of the net proceeds is captured in the increased value of the Fairlawn Avenue Property, which the plaintiffs already contend is available as notional estate. There is therefore no utility in considering further the net proceeds of sale of the Gilroy Road Property.

Enza is 60. She is the eldest child of the Deceased.

Enza grew up in the family home, the Gilroy Road Property. Enza has been financially independent from the Deceased since 1984, when she accepted her first full-time teaching job.

Enza moved to Italy to study music in 1986, when she was around 25. While she was in Italy, Enza met and married her husband. They have an adult son. Enza continues to live in Italy.

Enza kept in contact with the Deceased after she moved to Italy, and visited him whenever she travelled to Australia. The Deceased also visited Enza when he travelled to Italy.

Enza acknowledged that she had a tempestuous relationship with the Deceased and that she was “in and out of [her parents’] bad books, but it didn't matter. I loved them all the same” (Tcpt, 8 June 2021, p 157(46)). There were periods in which she had no contact with the Deceased, including between 1986 and 1990 when Enza decided to marry her husband and stay in Italy, and for around nine months in 1993. Enza explained that she “didn't have a close relationship with any member of my family because I didn't do what I was supposed to do as a Southern Italian daughter” (Tcpt, 8 June 2021, p 157 (2–3)).

In the last year of the Deceased’s life, he and Enza spoke only for his birthday and Feast Day in July, and at Christmas. Relatives and friends kept Enza updated about the Deceased’s deteriorating health and she was aware that he was dying.

Enza is an English language teacher. Her monthly income is $2,100. Enza’s husband is retired and receives a monthly pension of $2,000.

Enza and her husband have monthly expenses of approximately $3,689. Among these expenses, Enza contributes $154 per month towards a private pension to supplement her state pension when she retires. Her pension fund is approximately $25,000 at present. Enza plans to retire in five to six years.

The home in which Enza lives is owned by her husband, who is 17 years her senior. It has an estimated value of $442,930. Under Italian law, if her husband dies before she does, a half share of the home will pass to Enza and the other half share will pass to their son.

Enza and her husband have these other assets:

Emanuele is 59. He is the Deceased’s second child.

Emanuele is in a relationship with Antonia Bevege. They live with their son and Ms Bevege’s daughter. Emanuele has had some health issues which seem to have been successfully managed and to which no reference was made in final submissions.

Their son is 11. He has been diagnosed with autism. He is due to start high school in 2022.

Ms Bevege’s daughter is 18. She is currently in year 12 and plans to undertake tertiary study when she finishes high school.

Emanuele also has two adult children from his previous marriage.

The couple live on a property owned by Ms Bevege’s father and step-mother. Their home is an old caretaker’s residence. Ms Bevege has lived there since 1999 and over the past two years, she has done substantial renovation work on their home.

The home has three bedrooms, a study, two bathrooms, an outdoor spa and air conditioning. An adjoining old “chook shed” provides a two-car carport and storage shed. Between their home and the house where Ms Bevege’s father lives on the property, there is a small wooded area, a pool (albeit not a functioning pool at the time of the hearing) and a tennis court built by Ms Bevege’s father.

Ms Bevege and Emanuele have a signed, informal lease for their home from Ms Bevege’s father, which does not provide a specific term. They pay below-market rent but are responsible for maintaining the home and surrounding areas. If the conditions in the lease are not met, the document provides that their occupation can be terminated on 3 months’ notice. There was no evidence before the Court to suggest there was a threat of them being asked to leave and, as I have already noted, Ms Bevege had been living there since 1999. Nor was there any evidence of Ms Bevege’s father’s testamentary intentions in relation to the property.

Emanuele previously owned a property with his former wife, which he purchased in 1988. As set out at [12], the Deceased provided Emanuele with $55,000 to assist with building a house on the land. The Statutory Declaration records that the Deceased considered the $55,000 to be a gift (see [22] above). Ms Di Giovanni’s file note records that the Deceased referred to it as a loan that was forgiven (see [31] above). Emanuele’s evidence was that the $55,000 was a loan, which he repaid in cash in 1999. It is not necessary for the Court to make a finding about whether the $55,000 was a gift or a loan or had been repaid. It is sufficient to record that the Deceased assisted Emanuele financially to own his own home. In 2019, Emanuele transferred his share in the property to his former wife and received $575,000 in return as part of their divorce.

Emanuele is a school teacher. His annual salary is approximately $115,000 (about $80,000 net).

Ms Bevege previously ran her own tennis coaching business, but reduced her work hours after the birth of their son. She currently manages the household and is not in paid employment. Now that she has largely completed the renovations on their home, Ms Bevege expects to return to part-time work to assist in meeting the family’s expenses. Their son’s care needs are such that she does not expect to be able to work full-time until he finishes school.

Ms Bevege’s former husband provided monthly child support payments for his daughter. Those payments were due to cease in August 2021.

The family’s monthly living expenses are approximately $7,176, including current school fees. While their son’s school fees will increase next year when he begins high school, Ms Bevege’s daughter will graduate from high school this year.

Emanuele’s two eldest children are financially independent from him. He gave each of them $25,000 after his divorce from their mother. Over 2018 and 2019, he spent time with them regularly, by taking them out for modest restaurant meals twice a week.

Emanuele has these assets:

Ms Bevege has these assets:

While not a claimant in these proceedings, Ms Diaconu was the Deceased’s wife of six years and is a beneficiary of the Estate. The parties highlighted her circumstances as relevant to the determination of Enza and Emanuele’s family provision claims (s 60(2)(b) and (d)).

Ms Diaconu is Romanian and moved to Australia after meeting the Deceased. Ms Diaconu’s English is limited. She communicated with the Deceased in an Italian dialect. Although her initial affidavits in these proceedings were sworn in Italian, after the Deceased died she no longer spoke Italian regularly. She gave oral evidence in these proceedings in Romanian through an interpreter, and referred to Romanian translations of her affidavits when required.

Ms Diaconu provided care to the Deceased as his health deteriorated. The Deceased did not want to move into aged care, and Ms Diaconu’s assistance allowed him to remain living at home until he entered palliative care.

Ms Diaconu has an adult son who lives in Romania. When asked whether she plans to return to live in Romania, Ms Diaconu said that she would never leave the Deceased’s grave (Tcpt, 10 June 2021, p 346(39–40)).

Ms Diaconu currently lives alone in the Fairlawn Avenue Property. She has overseen and worked on the renovations. She gave evidence that she is doing the landscaping work herself because she cannot afford to pay landscapers. She said in cross-examination that she intended to rent out the four spare rooms for income, and that she had advertised the rooms online (Tcpt, 10 June 2021, p 304(2–4)). There was no evidence of when, how often or where Ms Diaconu advertised online.

Ms Diaconu said that she does not want to leave and sell the Fairlawn Avenue Property unless the Court orders her to do so (Tcpt, 10 June 2021, p 344(45–48)). She indicated that she is prepared to take out a loan, look for work or ask her son for financial assistance in the event the Court orders provision in a sum greater than the liquid assets available.

Ms Diaconu receives JobSeeker payments from Centrelink. Ms Diaconu has looked for work as a cleaner, but was unable to find an ongoing position which she attributes in part to the current COVID-19 pandemic.

Ms Diaconu’s evidence is that she spends only around $50 a week on groceries because she lives frugally and knows how to make the most of what food she buys.

Ms Diaconu has these assets:

Ms Diaconu has applied for a loan of approximately $500,000, which she said in cross-examination was to ensure she would be prepared for the outcome of these proceedings.

The applicable legal principles were not in dispute. The Act includes:

A claim under the Act invites two fundamental questions. The first question is whether adequate provision for the applicant’s proper maintenance, education or advancement in life was made. If adequate provision was not made, the second question is the provision which should be ordered.

In Bowers v Bowers [2020] NSWSC 109, Hallen J said at [284] that determining what provision ought to be made:

The general principles applicable to family provision claims by adult children were set out by Hallen J in Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at [473], which I gratefully adopt and apply:

Regarding the relevance of the size of the Estate in considering an application for provision, in Re Buckland (dec’d) [1966] VR 404 Adams J said at 415:

As to the significance of a claimant’s conduct during the deceased’s lifetime, Hallen J observed in Armitage v Fraser [2020] NSWSC 979 at [250]:

Similarly, Holland J stated in Kleinig v Neal (No 2) (1981) 2 NSWLR 532 at 540:

Counsel for Enza submitted that she has these needs:

Counsel for Enza submitted that her relatively distant and at times difficult relationship with the Deceased did not support a conclusion that proper and adequate provision for her would be lower than what it otherwise would have been, had Enza been more involved in the Deceased’s daily life or their relationship been better. Counsel submitted that her arguments with the Deceased and the letters she sent to family members were not disentitling conduct, citing Hallen J’s comments in Armitage v Fraser set out at [105] above.

Finally, it was submitted for Enza that the size of the Estate and notional estate is sufficient to allow provision to be made while respecting the Deceased’s testamentary freedom and his moral obligation to make provision for his wife, Ms Diaconu. Counsel for the defendant in response drew to attention that the nature of the Estate and notional estate is also a relevant consideration. The Fairlawn Avenue Property is the main asset. It is Ms Diaconu’s home, on which she has done significant work, and it was to be her source of income.

Counsel for the defendant accepted that the provision made in the Will was not proper and adequate, and that an order for provision may be made for Enza from notional estate. However, it was submitted that any provision should be modest given Enza’s limited needs, her poor relationship with the Deceased and Ms Diaconu’s competing claim as beneficiary. The defendant conceded that provision of around $135,000 for Enza’s renovation and dental works would be proper, but submitted that it remained open to the Court to dismiss Enza’s claim.

Counsel for Emanuele submitted that he has these needs:

It was conceded that the Will did not make proper and adequate provision for Emanuele. However, counsel for the defendant argued that Emanuele had few, if any, needs which would warrant the making of a family provision order. It was submitted for the defendant that Emanuele and his family are in secure accommodation, that their income will soon been supplemented by Ms Bevege returning to work, and that Emanuele’s limited savings are due to his financial choices. Counsel referred to Emanuele’s choice to renovate the home in which he lives and choices about his adult children outlined at [87]. I record immediately that the Court does not accept this submission about Emanuele’s financial choices in relation to his two eldest children. Such matters are not financial choices which could be seen to undermine any moral claim for provision which Emanuele would otherwise have.

The defendant also submitted that the Deceased did not have a moral obligation to put Emanuele in a position to purchase an unencumbered home or to finance him into a home he otherwise would be unable to afford. To the extent the Deceased had a moral obligation to give Emanuele a start in life, the Deceased had fulfilled it by providing for Emanuele’s university education and lending him $55,000 to build his home with his former wife.

Further, any moral claim Emanuele would otherwise have had would be reduced by his falling out with the Deceased. Counsel for the defendant submitted a sum of $100,000 for a buffer for contingencies would be proper provision for Emanuele, also having regard to Ms Diaconu’s competing claim.

As children of the Deceased, Enza and Emanuele are eligible to apply for family provision orders (s 57(1)(c)). Their application was filed on 8 October 2019, within 12 months of the Deceased’s death (s 58(2)).

As recorded at [5], Ms Diaconu conceded that the Will did not make adequate provision for the plaintiffs’ proper maintenance, education or advancement in life (s 59(1)(c)). The question before the Court was therefore what provision should be made.

In what follows, I cross-reference the sub-paragraphs to the relevant provisions of s 60(2) of the Act setting out matters which may be taken into account by the Court:

The Court’s jurisdiction under the Act is to be applied to consider a plaintiff’s need and the Deceased’s moral obligation to a plaintiff in the context of, at least and not limited to, the matters set out in s 60(2) of the Act.

I next consider two particular issues raised by the parties.

First, there is the plaintiffs’ conduct and the nature of their relationships with the Deceased. The defendant submitted that Enza’s moral claim on the Estate was reduced by factors including her difficult relationship with the Deceased throughout his life, the letters she wrote to relatives about his decision to leave the Estate to Ms Diaconu, her failure to contact the Deceased when he was dying, and the fact that she returned the Deceased’s funeral card. In relation to Emanuele, the defendant highlighted factors including his disagreements with the Deceased and Ms Diaconu about the Will, their lack of contact in the final year of the Deceased’s death, his failure to visit the Deceased in palliative care, and Emanuele’s late attendance at the Deceased’s funeral.

The Court concludes that it would be neither helpful nor possible to attempt to assign blame for the Deceased’s difficult relationships with his children and their estrangement in the final year of his life. The challenges in their relationships were complex and dated from the time of Angela’s death, if not before. It is clear from the Eulogy Video that the Deceased loved his children, and it is clear from the plaintiffs’ evidence that they loved their father. Nevertheless, by reason of circumstances including temperament, misunderstandings, distance and difficulties accepting the other’s life choices, the Deceased and the plaintiffs each inflicted significant hurts on the other that they were unable to overcome by the end of the Deceased’s life. I respectfully adopt the comments of Hallen J in Armitage v Fraser and Holland J in Kleinig v Neal (No 2) set out at [105]–[106] above, that some disharmony, hurt and disappointment is unfortunately not uncommon in many family relationships. A just and wise parent testator would not overlook the needs of their children for that alone.

For this reason, the plaintiffs’ conduct in this case was not of a kind or of sufficient gravity that it could be said to reduce the moral claim which they would otherwise have had on the Estate. However, the plaintiffs’ claims must be assessed in light of the reality that in the final years of the Deceased’s life, they had separate lives and minimal contact with him.

Enza, in addition, has made her life in Italy, far away from the Deceased. Ultimately, and without any criticism whatsoever, in circumstances where she led a life overseas independent of the Deceased, the Court finds that the Deceased’s moral obligation to make provision for her very limited.

The second issue raised by the parties was Ms Diaconu’s competing claim as the Deceased’s widow and his carer at the end of his life. The plaintiffs did not dispute that Ms Diaconu provided significant care for the Deceased and had a legitimate claim on the Estate. However, in considering Ms Diaconu’s competing claim, attention was given by the parties to the size and nature of the Estate and notional estate.

The Fairlawn Avenue Property is the asset out of which the Court could order provision for the plaintiffs. There was no dispute that the Deceased’s half share as joint tenant of the Fairlawn Avenue Property was available to be designated as notional estate for the purpose of satisfying any order for provision the Court may make. However, the plaintiffs pressed a submission that the whole of the Fairlawn Avenue Property was available to be designated as notional estate. While the provision for which the plaintiffs claimed would not exceed the Deceased’s half share, the plaintiffs contended that the size of the notional estate was an important factor to which the Court may have regard under s 60(2)(c).

For the purposes of considering the plaintiffs’ family provision claims, I have assumed without deciding that the full value of the Fairlawn Avenue Property may be available as notional estate. Ultimately, while the size of the notional estate is a factor in the Court’s consideration, also of importance is the nature of the property available to be designated as notional estate.

Counsel for the plaintiffs contended that Ms Diaconu would need to sell the Fairlawn Avenue Property regardless of the outcome of the proceedings, so the Court should primarily consider its monetary value in assessing the plaintiffs’ claims. I do not accept that this was established on the evidence. The evidence was insufficient to allow the Court to conclude more than that Ms Diaconu presented a range of options which could plausibly enable her to retain the Fairlawn Avenue Property (see [95] above). Her capacity to retain the Fairlawn Avenue Property would depend primarily on the outcome of these proceedings.

The Court has therefore taken into account that the notional estate is the home in which Ms Diaconu lives, to which she has contributed her time and labour, is where she would like to remain if possible, and from which she intends to derive income. The Court has also taken into account that the Deceased expressed clearly, on multiple occasions, that his testamentary intention was for Ms Diaconu to receive the Fairlawn Avenue Property.

Considering the parties’ submissions more generally, I have borne in mind the principles in relation to claims by adult children (set out at [103]–[104] above). While accepting that the plaintiffs do not need to show some special need, neither plaintiff is a claimant who has fallen on hard times. Both Enza and Emanuele have stable employment, modest financial reserves and secure accommodation, despite not owning their own homes. The Deceased provided Enza and Emanuele with a start in life, including by supporting them both to receive a university education.

Nevertheless, the Court is satisfied that the plaintiffs have some moral claim, albeit limited, to provision from the Estate by way of some general assistance in life that an adult child might expect from a wise and just parent testator where the size of the Estate, and other competing claims upon it, permit such assistance to be given. Their claim is limited by the matters identified in [122], [123] and [129], and is outweighed for the purpose of the exercise of the Court’s discretion - the instinctive synthesis - by the faithful care provided by Ms Diaconu over six years of marriage, and the matters identified in [128].

Balancing the matters referred to in the preceding paragraph in the context of the various matters set out in [117], and not overlooking the size of the available notional estate, the Court has determined that provision should be ordered for Enza in the sum of $135,000 and for Emanuele in the sum of $100,000. This provision will be ordered instead of, not in addition to, the provision made in the Will.

In Enza’s case, this accepts the defendant’s concession that she could properly receive provision to enable her to carry out home repairs and maintenance, and to afford the dental work she requires. The Court accepts that it would be difficult for Enza to cover those expenses without reducing her pension contributions, at an age where she expects to retire in five to six years. Provision of these funds would ensure Enza is able to address her current needs while continuing to build her private pension as a buffer for her retirement. In reaching this conclusion, the Court has taken into account that the Deceased acknowledged that Enza received less financial assistance from him than her siblings over the course of his life, and that the Deceased chose to make greater provision for her in the Will accordingly. Finally, I record that while Enza’s car is 10 years old, there was no evidence before the Court to suggest it was in need of immediate replacement. Enza and her husband also own a second car which is five years old. The Court is not satisfied that Enza has demonstrated a persuasive need for a new car which would warrant provision for that purpose being ordered.

In Emanuele’s case, the Court’s conclusion accepts the defendant’s concession that a $100,000 buffer for contingencies would be proper provision for Emanuele. Emanuele was close to the Deceased over the course of his life, despite the breakdown in their relationship in the latter’s final years. While Emanuele’s current financial position is relatively comfortable, he is the primary income earner for his household of four. His financial position is helped by the accommodation arrangements he and Ms Bevege have in place with her father. Ms Bevege accepted in cross-examination that their home is fit for purpose, although in her view, “not ideal” (Tcpt, 9 June 2021, p 260(36–43)). There is no suggestion that those arrangements will come to an end other than by Emanuele and Ms Bevege buying their own home. Provision of a modest buffer would put Emanuele in a more secure financial position, should they chose to do so by using his $570,000 in cash.

However, the Court does not accept that the Deceased had a moral obligation to put Emanuele in a position to purchase his own home. There is no general principle that a parent testator has such an obligation and there are no features in the relationship between the Deceased and Emanuele, or in Emanuele’s current circumstances, that would support such an obligation being found in this case. To the extent the Deceased had any obligation to assist Emanuele in purchasing a home, the Deceased had already fulfilled that obligation by assisting Emanuele as set out at [12] above.

Emanuele accepted that he could borrow up to $375,000 so that he and Ms Bevege would have $945,000 to purchase a home. The Court accepts that they wish to continue to live in Arcadia, but they have not demonstrated any persuasive need to do so if they were to leave their current home. The industry of the defendant’s counsel was unable to find an example of a house in Arcadia for sale in that price range. However, if $945,000 does not permit them to buy in that area, the Court does not accept that Emanuele has any claim on the Estate to provide him with additional funds to make that wish a reality.

The Estate is insufficient for the sum of provision to be ordered for the plaintiffs (s 88(b)). There was no dispute between the parties that at least half of the Fairlawn Avenue Property was available to be designated as notional estate. As that half share far exceeds the provision to be ordered, there is no need for the Court to consider whether the Fairlawn Avenue Property should be designated as notional estate in its entirety.

Counsel for Ms Diaconu highlighted that the Court must not make a notional estate order unless it has considered the substantial justice and merits involved in making the order (s 87(b)). Counsel emphasised that Ms Diaconu lives in the Fairlawn Avenue Property, wants to remain there, is gradually working on completing the home and has plans to support herself with income from lodgers.

As set out at [128] above, the Court also took these factors into account in determining the sum of the legacy to be ordered for the plaintiffs, given that the Fairlawn Avenue Property is the principal asset out of which provision could be made. In those circumstances, the justice and merits of this case will be met by the Court making a notional estate order designating so much of the Fairlawn Avenue Property as is necessary to satisfy the plaintiffs’ legacy, but without making an order requiring the defendant to sell the Fairlawn Avenue Property. The defendant should be given a reasonable time to make her own decision about how to finance the payment of the plaintiffs’ legacy, including whether or not to sell the Fairlawn Avenue Property.

The parties will be given an opportunity to agree on short minutes of order to give effect to these reasons and as to costs.