GANGEMI v SPARTA - [2021] WASC 441

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   GANGEMI -v- SPARTA [2021] WASC 441
CORAM:   MASTER SANDERSON
HEARD:   16 NOVEMBER 2021
DELIVERED          :   9 DECEMBER 2021
FILE NO/S:   CIV 1553 of 2021
BETWEEN:   ADAM PETER GANGEMI
Plaintiff
AND
MANUELA SPARTA
First Defendant
LOREDANA GANGEMI
Second Defendant

Catchwords:

Probate - Advice to administrators as to proper interpretation of will - Turns on own facts

Legislation:

Nil

Result:

Advice given

Representation:

Counsel:

Plaintiff	:	JG Young
First Defendant	:	PDC Robinson
Second Defendant	:	PT Arns

Solicitors:

Plaintiff	:	Zafra Legal
First Defendant	:	Williams & Hughes
Second Defendant	:	Arns & Associates

Case(s) referred to in decision(s):

Fairweather v Fairweather [1944] 69 CLR 121
Jenkins v Jones (1866) LR 2 Eq 323
Moylan v Rickard [2010] QSC 327
Public Trustee of Queensland (as litigation guardian of Ethel May Brigg, also known as Lucy Brigg) v Stibbe as executor of the Will of the late Winifred Deidre Butler [2012] QSC 357
Re Plowright, Deceased [1971] VR 128
Re Viertel [1997] 1 Qd R 110
RL v NSW Trustee and Guardian [2012] NSWSCA 39

MASTER SANDERSON:

The late Anna Maria Zanni (the deceased) made a will on 30 June 2006. She made a subsequent will on 27 March 2013. In 2013 the deceased was diagnosed with dementia. On 11 August 2014 the State Administrative Tribunal appointed the Public Trustee as plenary administrator of the deceased's estate. On 13 October 2017 the Public Trustee, in its capacity as the appointed plenary administrator, sold the deceased's former residence at 222 Morley Drive Dianella (Morley Drive property) for $613,000. The deceased was the sole registered proprietor of the Morley Drive property.
On 17 October 2017 the Public Trustee received $597,932.43 in settlement funds from the sale of the Morley Drive property. On 20 October 2017 the Public Trustee deducted an amount of $500,000 as a refundable accommodation deposit for Aegis Aged Care St Michaels in North Perth. The deceased died on 1 March 2019. At the date of her death, the deceased was a resident of the Aegis Aged Care St Michaels. On 29 May 2020 Justice Tottle made orders revoking the Grant of Probate in respect of a 2013 Will and made a Grant of Probate in respect of the 30 June 2006 Will. His Honour found on the evidence that at the time of making the later Will the deceased did not have testamentary capacity. On 23 July 2020, a Grant of Probate was obtained in respect of the 30 June 2006 Will.
For present purposes, it is cl 4 and 5 of the 2006 Will which are relevant. They read as follows:
I GIVE DEVISE AND BEQUEATH unto my Trustee all my real and personal estate whatsoever to hold UPON TRUST to sell call in and convert the same into money either by public sale or private contract with power to postpone the sale calling in or conversion of the whole or any part of parts thereof and to retain any property…

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.

Continue reading GANGEMI v SPARTA

Details

AGLC: GANGEMI v SPARTA [2021] WASC 441
Case: [2021] WASC 441
Decision Date

CaseChat Overview and Summary

The case of Gangemi v Sparta involved a dispute over the interpretation of a will made by Anna Maria Zanni. The will contained two relevant clauses: clause 4, which directed the executor to sell the deceased's real and personal estate and convert it into money, and clause 5, which made specific bequests to the deceased's grandchildren and divided the proceeds of the sale of a particular property between two of the deceased's daughters. The executor sought a declaration that the gift in clause 5(b) of the will had failed by ademption and that the monies held by the Public Trustee of Western Australia at the date of her death and the monies refundable to her by Aegis Aged Care Group Pty Ltd (ACN 009 048 784) form part of her residuary estate.

The court considered three questions: (1) whether the gift in clause 5(b) of the will was a specific legacy or if it entitled the first and second defendants to an equal share or fund from the sale of the Morley Drive property; (2) if the gift was of a specific property right, whether it failed for ademption; and (3) if the gift failed for ademption, whether the monies held by the Public Trustee passed to the residuary estate.

The court concluded that clause 5(b) was not a specific legacy, but rather a general legacy of money to be calculated from the sale price of the property but paid out of the general funds of the estate. The court found that the gift was not adeemed, as it was not a specific gift of a percentage of the proceeds of sale of the property. Therefore, the first and second defendants were entitled to half of the proceeds referable to the sale of the Morley Drive property.

The court certified that the preceding paragraph(s) comprise the reasons for the decision of the Supreme Court of Western Australia.

Orders