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Plaintiffs Oppose Deceased's Testamentary Dispositions

Re Donateo [2021] VSC 792 (30 November 2021)

The deceased left an entire estate to his widow and two minor children, making no provision for eldest three adult children.  The deceased left a letter setting out reasons for his testamentary dispositions.  The Court, in ruling on whether order should be made for provision to each plaintiff, relied upon the Administration and Probate Act 1958 (Vic) ss 909191A

Facts:

Leonardo Donateo (‘the deceased’) died on 14 January 2019.  On 18 April 1978, he married his first wife, Beverley Reece, and on 2 October 1978 they had Danielle Bafas.  They separated not long after Danielle’s birth, and divorced sometime in 1980.  On 20 September 1985, the deceased married his second wife, Cristina Donateo, and they had two children, Bianca Donateo and Julia Donateo. 

The deceased and Cristina separated in 1991, but did not formally divorce until 25 April 2010.  By early 2001, the deceased was in a relationship with Dina Donateo and were married on 10 March 2018.  On 11 August 2009, Leonardo Donateo (junior) was born and on 5 January 2015, Eve Donateo was born.  In his will signed on 27 April 2018, the deceased left his entire estate to Dina, who was his wife at the time of his death, and appointed her the executrix of his estate. 

The precise value of the estate is in the region of $5 million.  The deceased stated in his will that he made no provision for Danielle because they had been ‘estranged from each other for many decades’ and that he believed that she was financially independent.  The deceased also stated in his will that he made no provision for Bianca and Julia because neither had shown him ‘an acceptable level of love, care and respect’ and because he believed that he had made adequate provision for them during his lifetime.  The deceased also left a letter dated 19 March 2018, written by Dina but dictated by the deceased, and witnessed by his solicitor, in which he set out in more detail why he had chosen not to leave any money to the children by his first two wives.

In separate proceedings, which were heard together, Danielle, and then Bianca and Julia, sought orders under s 91(1) of the Administration and Probate Act 1958 (‘the Act’) that provision be made out of the estate for their proper maintenance and support. Danielle submitted that a figure of $600,000 would be appropriate, and Bianca and Julia submitted that a figure of $1,000,000 each would be appropriate. In her written submissions, Dina opposed any orders being made. In the course of submissions, she submitted that any award ought to be no more than something in the region of $300,000 for each of Julia and Bianca and $190,000 for Danielle.

Issue:

Whether or not orders should be made for provisions to each plaintiff.

Applicable law:

Administration and Probate Act 1958 (Vic) s 90 - relied upon in holding that Danielle is an 'eligible' person.

Administration and Probate Act 1958 (Vic) s 91(2)(c) - provides that an 'eligible' person is entitled to an order that provision be made for her out of the estate if, at the time of his death, the deceased had a moral duty to provide for her proper maintenance and support. 

Administration and Probate Act 1958 (Vic) s 91(5)(a) - requires the Court to consider what a wise and just testator in the deceased’s position would determine was the minimum necessary provision to discharge his moral obligation to provide for the proper maintenance and support of his first three children.

Administration and Probate Act 1958 (Vic) s 91A(2)(a) - provides that the nature of the relationship and the behaviour of the children is a matter to which regard may be had. 

Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2(1979) 143 CLR 134 - relied upon in not accepting that the estrangement between them reflected, or was indicative of, any renunciation by Danielle of her father. 

Re Green, deceased; Zukerman v Public Trustee [1950] NZGazLawRp 121[1951] NZLR 135 - relied upon in holding that the fact that assertions about the behaviour of Bianca and Julia were made to Dina, and in the will and letter, does not make them true.

Valentini v Valentini [2014] VSC 91 - relied upon by the Court in not being satisfied that Bianca and Julia have behaved towards their father in a way that extinguished the moral obligation that he would otherwise owe to them as their father.

Kleinig v Neal [1981] 2 NSWLR 532 - held that the wise and just testator would accept that friction between parent and child is not unusual and would not allow that disharmony to make him or her blind to the needs of that child. 

Grey v Harrison [1996] VSC 74[1997] 2 VR 359 - provides that determining the minimum amount that a wise and just testator would have provided requires an ‘instinctive synthesis’ of all these matters. 

Analysis:

Danielle’s evidence is that she was able to maintain a relationship with the deceased after her wedding, and that the breakdown in their relationship followed the inappropriate and aggressive behaviour towards her by the deceased.  The deceased wrote in his will that he had been ‘estranged’ from the deceased ‘for many decades’.  They had been estranged, but for a period of around 14 years.  More significantly, he wrote in the letter that he felt ‘very strongly’ that Danielle did not have any ‘love or respect’ for him as a father and that she had ‘no desire’ to be a part of his life.  Danielle had, in substance, made a decision to renounce her filial relationship.

Dina believes that Bianca and Julia simply ‘lost interest’ in their father and that their relationship broke down because the deceased ‘was tired of being disrespected and being treated like a cash cow’.  However, the comments made about Bianca and Julia in the will and letter of the deceased do not take into account the fact that he had on occasions acted aggressively towards them.  The fact that neither Bianca nor Julia had been bothered to visit him when he was ill fails to take into account the fact that they had not been informed that he was seriously ill. 

Conclusion:

The Court concluded that estrangement between Danielle and the deceased was not shown.  The Court was not satisfied that Bianca and Julia have behaved towards their father in a way that extinguished the moral obligation that he would otherwise owe to them as their father.  The Court considers that the wise and just testator would nonetheless have made a provision for Danielle of not less than $300,000.  As to Bianca and Julia, the Court considers that the wise and just testator would have made a provision of not less than $425,000 each.

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