Cummings v De Santis; De Santis v De Santis - [2002] NSWSC 729

CITATION: Cummings v De Santis; De Santis v De Santis [2002] NSWSC 729

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 3289/00; 1009/02

HEARING DATE(S): 04/04/02, 05/04/02

JUDGMENT DATE: 21 August 2002

PARTIES :

Pamela Helen Cummings v David De Santis
Mary De Santis v David De Santis & Ors

JUDGMENT OF: Acting Justice Macready at 1

COUNSEL : Mr LJ Ellison for Pamela Cummings
Mr J.O. Anderson for Mary De Santis
Mr R. Weaver for David De Santis

SOLICITORS: Gibson Owen Lawyer Inc for Pamela Cummings
Jackson Smith for Mary De Santis
M.R. Barber & Associates for David De Santis

CATCHWORDS: Family Provision. Applications by the widow and the de facto partner of deceased. Small legacy to the widow and the claim of the de facto partner dismissed. - Succession. Construction of bequest containing an expression of purpose. Whether bequest entitles the beneficiaries to call for a transfer of a legal life estate.

DECISION: Paragraph 40

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING JUSTICE MACREADY

Wednesday 21 August 2002

3289/2000 PAMELA HELEN CUMMINGS v DAVID DE SANTIS – ESTATE OF ANTONIO DE SANTIS
1009/2002 MARY DE SANTIS v DAVID DE SANTIS & OTHERS

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the late Antonio De Santis who died on 26 January 1999. The deceased was survived by his wife, three sons and the plaintiff in matter number 3289 of 2000. The plaintiff, Mrs Cummings, lived with the deceased as his de facto wife for the last 15 years of his life. The deceased’s widow has now brought proceedings in matter number 1009 of 2002 and I have heard both matters together with the evidence in one being evidence in the other.

2 The deceased’s last will was made on 20 January 1999. Mrs Cummings and the defendant David De Santis were appointed executors and trustees of the will. The will contained a number of specific bequests before giving the residue of his estate to Mrs Cummings in clause 8. The specific bequests which are important are, first, the bequest in clause 3 which dealt with the deceased’s one-third share in the property known as 72-74 Stanley Street, East Sydney. The terms of that bequest is as follows: --

“I give my one-third undivided share in the property known as 72-74 Stanley Street, East Sydney in the said State to my Trustees upon trust to transfer to my spouse Mary De Santis and to Pamela Helen Cummings in equal shares as joint tenants for life for the purposes of receipt of all my share of nett income from the said property and no income received from the said property after my death shall be apportioned to or treated as capital of my estate and the whole shall belong to the said Mary De Santis and Pamela Helen Cummings in equal shares. The said life estate shall be terminable in respect of the share of either…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWSC 729
Decision Date: 21 August 2002

CaseChat Overview and Summary

In the recent decision of Cummings v De Santis; De Santis v De Santis, the court was called upon to determine the validity of claims made by the deceased's widow and de facto partner under the Family Provision Act 1969 (NSW). The central issue was the interpretation of a bequest in the deceased's will, which provided for a small legacy to the widow and certain assets to the de facto partner. The widow argued that the bequest was inadequate, while the de facto partner claimed entitlement to a transfer of a legal life estate.

The court was tasked with interpreting the purpose behind the bequest and determining whether it entitled the beneficiaries to a transfer of a legal life estate. The court examined the language of the will, the context in which it was written, and the deceased's intentions. The widow contended that the bequest was manifestly inadequate, while the de facto partner argued that the bequest should be interpreted as entitling her to a life estate in the property. The court had to weigh the evidence and arguments presented to determine the true meaning of the bequest.

After careful consideration of the evidence, the court held that the bequest did not entitle the beneficiaries to a transfer of a legal life estate. The court found that the bequest was not ambiguous and that its purpose was clear. The court dismissed the widow's claim for inadequacy and the de facto partner's claim for a transfer of a legal life estate. The court's decision was based on a thorough analysis of the will and the intentions of the deceased.

The court's final orders were that the widow's application for an increased legacy was dismissed, and the de facto partner's application for a transfer of a legal life estate was also dismissed. The court's decision provides guidance on the interpretation of bequests and the application of the Family Provision Act in similar cases.

Orders