Pagano v Ruello - [2001] NSWSC 63

CITATION: Pagano & Ors v Ruello [2001] NSWSC 63

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 1655/98

HEARING DATE(S): 14/02/01, 15/02/01

JUDGMENT DATE:
16 February 2001

PARTIES :

Flavia Pagano (P1)
Frances Amante (P2)
Orsola Youssef (P3)
Benedetta Ruello (D)

JUDGMENT OF: Simos J

COUNSEL : Simon White (Plaintiffs)
Malcolm Hilbery (Defendant)

SOLICITORS: Bolzan & Dimitri (Plaintiffs)
Crichton-Brownes (Defendant)

CATCHWORDS: Wills - Construction - Right of Residence - Held, right of residence lost by failure to continue to reside in subject property and also by failure to pay maintenance expenses of the subject property - Held Further, that the beneficiary had not "married" within the meaning of the will notwithstanding her entry into a de facto relationship

CASES CITED: Harris v Ashdown (1985) 3 NSWLR 193
Hoppe v McDavitt (1961) VR 399, 401
Hurley v Hurley (1947) 75 CLR 289 at 291
Perpetual Trustees Executors and Agency Co of Tasmania Ltd v Walker (1953) 90 CLR 270 at 279
Potter (Deceased) 1970 VR 352, 354-355

DECISION: Verdict for the plaintiffs

IN THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

SIMOS J

FRIDAY 16 FEBRUARY 2001

1655/98 - FLAVIA PAGANO, FRANCES AMANTE & ORSOLA YOUSSEF -V- BENEDETTA RUELLO

JUDGMENT

1 By further amended summons filed on 14 February 2001 the plaintiffs sought certain declarations in relation to the true construction of clause 4 of the will dated 31 January 1994 of the late Salvatore Ruello who died on 7 August 1994 and probate of whose will was granted on 21 December 1994 to Benedetta Ruello, the executrix and trustee, appointed by the said will, being the defendant to the present proceedings. As at the date of his death the testator owned certain property, including a property at 6 Thornley Street Leichhardt.

2 By the said will, the testator, after revoking all former wills and testamentary dispositions, and appointing his daughter, the third defendant, to be executrix and trustee of his will, directed payment of all his just debts, funeral and testamentary expenses.

3 The testator then provided in clause 4 of his will as follows:-

I GIVE DEVISE AND BEQUEATH

the whole of my property of which I may die possessed both real and personal and of whatsoever nature and wheresoever situate to my Trustee

UPON TRUST

to divide as follows:-

“(a) My house situate at 6 Thornley Street, Leichhardt to my daughters,

ORSOLA, FRANCES, FLALVIA

and

BENEDETTA

in equal shares

PROVIDED THAT

my daughter

BENEDETTA

shall have the right to reside in the home until such time as she marries, whereupon the property is to be sold and the proceeds to be divided equally between my daughters. Whilst my daughter

BENEDETTA

resides in the home after my death, then all the Council Rates, Water Rates and maintenance expenses shall be paid by her. In the event

BENEDETTA

wishes to leave the house and reside at some other address, then the house may be sold at an earlier date as may be agreed amongst my daughters.

(b) All my personal…

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 Pagano v Ruello

Details

AGLC: Pagano v Ruello [2001] NSWSC 63
Case: [2001] NSWSC 63
Decision Date: 16 February 2001

CaseChat Overview and Summary

The case of Pagano v Ruello involved a dispute concerning the interpretation of a will, specifically regarding the beneficiary's entitlement to a right of residence and the consequences of failing to maintain the property. The case was heard and determined in the Supreme Court of Queensland. The central issue was whether the beneficiary had lost her right of residence by not residing in the property and failing to contribute to its maintenance, and whether she had married within the meaning of the will despite being in a de facto relationship.

The court had to address whether the beneficiary's absence from the property and her failure to pay maintenance expenses constituted a breach of the conditions set out in the will. Additionally, the court examined the nature of the beneficiary's relationship and whether it met the criteria for "marriage" as specified in the will. The court found that the beneficiary's continuous absence from the property and her inability to pay maintenance expenses resulted in the forfeiture of her right of residence. Furthermore, the court held that her de facto relationship did not satisfy the will's requirement for "marriage," thereby affecting her entitlement to the property.

In its judgment, the court emphasised the importance of strict compliance with the conditions specified in a will. It concluded that the beneficiary's failure to meet the residency and maintenance requirements led to the loss of her right of residence. Additionally, the court's interpretation of the term "marriage" in the context of the will meant that the beneficiary's de facto relationship did not qualify under the will's provisions. The court's decision underscored the necessity for beneficiaries to adhere to the specific terms and conditions outlined in a will to retain their entitlements.

Orders