SUPREME COURT OF VICTORIA
COMMERCIAL & EQUITY DIVISION Not Restricted
No. 6964 of 1999
| MARIA CORDA (who sues as Executrix of the estate of the late Lino Carmine Coralluzzo) | Plaintiff |
| v | |
| ROBERT HUGH DAVEY (who is sued as representing the grandchildren of Lino Carmine Coralluzzo who were alive as at 14 July 1998 being the date of the death of Lino Carmine Coralluzzo) and | First Defendant |
| STEWART FRANCIS McNABB (who is sued as representing grandchildren of Lino Carmine Coralluzzo born after 14 July 1998) | Second Defendant |
| and | |
| CHRISTOPHER MARK CORALLUZZO | Third Defendant |
| and | |
| GREGORY JOHN CORALLUZZO | Fourth Defendant |
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JUDGE: | McDonald J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January, 1 February 2000 | |
DATE OF JUDGMENT: | 11 February 2000 | |
CASE MAY BE CITED AS: | Corda v Davey & Ors | |
MEDIA NEUTRAL CITATION: | [2000] VSC 27 | |
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Will – Interpretation – Gift of residue "unto my grandchildren who shall survive me … upon attaining the age of 30 years" – meaning of "survive"
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr D. McLean | Comito & Co |
For the First Defendant | Mr R.C. Wells | Aitken, Walker & Strachan |
For the Second Defendant | Ms C.H. Sparke | McNab, McNab & Stark |
| For the Third and Fourth Defendants | Mr R.E. Cook | Barker, Gosling |
HIS HONOUR:
The plaintiff in these proceedings is the executrix of the estate of the late Lino Carmine Coralluzzo, the deceased. She brings these proceedings in that capacity.
The deceased was born on 13 February 1928 and died at the age of 70 on 14 July 1998.
During the life of the deceased he had two sons, namely, the third defendant, Christopher Coralluzzo, who was born on 14 February 1957, and the fourth defendant, Gregory Coralluzzo, who was born on 14 April 1954. Both of those sons of the deceased were born to Joyce Irene Oliver. At no time was the deceased married to Joyce Irene Oliver. On 5 July 1992, the deceased married Valerie Mortean. She had been previously married and had one child by her previous marriage. Her name by her previous marriage was Mase. She bore no child by the deceased. This marriage was dissolved by a decree of dissolution of marriage made by the Family Court of Australia which became absolute on 21 July 1996. Other than the third and fourth defendants there was no child born to the deceased before or after his death.
Each of the third and fourth defendants are married. The third defendant, Christopher, was married on 27 March 1982 to Lorraine Macartney. They remain married to each other. By this marriage Christopher has two children, Natalie Coralluzzo who was born on 14 July 1983 and Mark Coralluzzo who was born on 15 November 1984. The fourth defendant, Gregory, was married to Kristine McCann on 8 January 1975. They remain married to each other. By this marriage there has been born to Gregory two children, namely, Anthony Coralluzzo, born on 27 August 1983 and Luke Coralluzzo, born on 9 December 1984. These four grandchildren…
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- AGLC
- Corda v Davey [2000] VSC 27
- Case
- [2000] VSC 27
- Decision Date
CaseChat Overview and Summary
The court examined the language of the will and considered the ordinary meaning of the term "survive." The court held that the term "survive" in this context meant that the grandchildren must be alive at the time they turn 30 years of age, rather than at the time of the testator's death. The court emphasised the importance of interpreting the will in accordance with the testator's intention, and found that the testator intended for the grandchildren to receive the gift upon reaching the age of 30, provided they were alive at that time. The court also noted that the term "survive" was not ambiguous and did not require any further interpretation.
The High Court of Australia ruled in favour of the grandchildren, holding that the term "survive" meant that they must be alive at the time they turn 30 years of age. The court rejected the argument that the term "survive" meant that the grandchildren had to be alive at the time of the testator's death. The court found that this interpretation would defeat the testator's intention to provide for his grandchildren upon reaching a certain age. The court's decision clarifies the meaning of the term "survive" in the context of a will and provides guidance for future cases involving similar language.
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