29 September 2020, further submissions 20 October 2020 and 5 November 2020
Decision date:
22 December 2020
Before:
Gleeson JA at [1]; Leeming JA at [2]; White JA at [47].
Decision:
1. Grant leave to appeal.
2. Appeal dismissed, with costs.
Catchwords:
SUCCESSION – construction of will – gift of two shares to three children as tenants in common – will stated that if shares not divisible by three, daughter would receive more – whether daughter entitled to both shares under will – consideration of joint ownership of choses in action
Christopher John De Lorenzo in his capacity as an executor of the Estate of the late Patricia Ellen De Lorenzo v Vincent Joseph De Lorenzo in his personal capacity & in his capacity as an executor of the Estate of the late Patricia Ellen De Lorenzo[2020] NSWSC 188
I Alexander, Copyright Law and the Public Interest in the Nineteenth Century (Cambridge University Press, 2010)
C Butler (ed),
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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AGLC
De Lorenzo v De Lorenzo [2020] NSWCA 351
Case
[2020] NSWCA 351
Decision Date
CaseChat Overview and Summary
The appeal concerned the construction of a will made by the late Mr. De Lorenzo, who bequeathed two shares in a company to his three children as tenants in common. The dispute arose from a specific provision in the will stating that if the shares were not divisible by three, his daughter would receive more. The primary issue was whether this provision entitled the daughter to both shares, or if it was intended to operate in some other way. The case was heard in the Court of Appeal of New South Wales.
The central legal question before the court was how to interpret the testator's intention regarding the distribution of the two company shares amongst his three children, particularly in light of the clause addressing divisibility by three. This required the court to consider the principles of will construction, the nature of joint ownership of choses in action, and the potential for ambiguity in testamentary dispositions.
The Court of Appeal determined that the testator's intention, as expressed in the will, was to ensure an unequal distribution in favour of the daughter if the shares could not be divided equally. The court reasoned that the phrase "if the shares are not divisible by three" referred to the practical impossibility of dividing two shares equally amongst three beneficiaries. Consequently, the court held that the daughter was entitled to both shares under the will.
Leave to appeal was granted, but the appeal was ultimately dismissed, with costs awarded to the respondents.