Estate of Scalone; Scalone v Diaconu [2021] NSWSC 1194

Supreme Court New South Wales

Medium Neutral Citation: Estate of Scalone; Scalone v Diaconu [2021] NSWSC 1194 Hearing dates: 7–11 June 2021 Decision date: 20 September 2021 Jurisdiction: Equity - Family Provision List Before: Kunc J Decision: Provision ordered from notional estate Catchwords: SUCCESSION — Family provision — Claim by adult child — Estate almost entirely left to testator's second wife — Adult children of testator and late first wife seek provision — Plaintiffs in relatively secure circumstances — Where one plaintiff has lived overseas for more than thirty years Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Armitage v Fraser [2020] NSWSC 979 Bowers v Bowers [2020] NSWSC 109 Kleinig v Neal (No 2) (1981) 2 NSWLR 532 Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 Re Buckland (dec'd) [1966] VR 404 Category: Principal judgment Parties: Vincenza Scalone (First Plaintiff) Emanuele Scalone (Second Plaintiff) Maria Diaconu (Defendant) Representation: Counsel:

J Brown and C Coventry (Plaintiffs) T Catanzariti (Defendant)

Solicitors:

Field Lawyers (Plaintiffs) Iron Cove Law (Defendant) File Number(s): 2019/301505 Publication restriction: No

Judgment

Summary 1. 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. 2. 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). 3. 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. 4. 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: "1 The Court orders, pursuant to rule 7.8 of the Uniform Civil Procedure Rules 2005 (NSW), that the defendant be appointed as the representative of the estate and notional estate of the late Pantaleo Scalone for the purpose of, and to conduct, the proceedings on behalf of the estate. 2 The Court grants, pursuant to section 91 of the Succession Act 2006 (NSW), administration in respect of the estate of the late Pantaleo Scalone to the defendant for the purposes only of permitting the plaintiffs' applications for family provision orders and notional estate orders to be dealt with. 3 The Court orders the rules for advertising be dispensed and other formal matters be dispensed with." 1. 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. 2. 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: 1. Provision should be ordered for Enza in the sum of $135,000, in place of the provision in the Will. 2. Provision should be ordered for Emanuele in the sum of $100,000, in place of the provision in the Will. 3. The Fairlawn Avenue Property should be designated as notional estate to the extent necessary to satisfy the provision to be ordered for the plaintiffs. However, Ms Diaconu should be given a reasonable time to determine whether the outcome of these proceedings requires her to sell the Fairlawn Avenue Property. 1. 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.