Santos v Santos - [2004] NSWSC 679

CITATION: Santos v Santos [2004] NSWSC 679

HEARING DATE(S): 29/07/2004

JUDGMENT DATE:
29 July 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION:

CATCHWORDS: Family Provision. Application by former wife for provision. Deceased severs joint tenancy shortly before death and his interest passed to second wife. Small estate leading to sale of only asset. Orders apportioning costs and outstanding mortgage.

PARTIES :
Victoria Santos v Estrelita Santos

FILE NUMBER(S): SC 3561/2003

COUNSEL: A. Canceri for plaintiff
J. Miller for defendant

SOLICITORS: R.J. Russell for plaintiff
Etheringtons Solicitors for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

THURSDAY 29 JULY 2004

3561/03 - VICTORIA SANTOS v ESTRELITA SANTOS

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the late Alberto Santos who died on 28 October 2002. He was survived by the plaintiff, a former wife, and the defendant who was his widow.

2 The deceased had five children. One of these was Marcus, son of the plaintiff and the deceased, who, unfortunately, died of spinal cancer on 22 January 1999, aged nineteen years. There is information that there were four children of the deceased born as a result of other relationships in the past. They were: Gloria Gabrina of the Philippines; Annabelle Rodriguez of Florida in the United States of America; Alberto Santos Junior of Hong Kong and Eddie of Hong Kong.

3 Notice has been given to Annabelle Rodriquez, who makes no claim. The addresses of the others are unknown and it is thus impractical to serve a notice on them pursuant to s 21.

4 Under the will of the deceased, which was made on 11 June 2002, the deceased left the whole of his estate to the defendant and appointed her as executrix. The assets in the estate consist primarily of a half share in the property known as 3 Linum Street, Macquarie Fields. The parties are agreed that the value of that property is $240,000, putting a half share at $120,000. The whole of the property is subject to a mortgage in the sum of $49,789. Taking into account the half share of this mortgage, the estate’s half share is worth $95,105.

5 There was also a car which was the subject of hire purchase, but that has been distributed to the defendant who has continued to meet payments on that hire purchase agreement and that she substantially reduced the amount owing.

6 There are a number of other debts in the estate has. There is a David Jones account in the sum of $3716; a debt due to the defendant’s niece by the deceased in the sum of $12,000; legal costs incurred by the deceased before his death of $1650. This gives a total of $17,366 and this would bring the estate share down to $77,739.

7 The defendant’s costs are estimated at $19,799, reducing the estate further to $57,940. If the plaintiff’s costs were to be paid out of…

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 Santos v Santos

Details

AGLC: Santos v Santos [2004] NSWSC 679
Case: [2004] NSWSC 679
Decision Date: 29 July 2004

CaseChat Overview and Summary

The case of Santos v Santos, heard in the Family Court of Australia, involved a dispute between the former wife of the deceased, the applicant, and the second wife of the deceased, the respondent, regarding the provision from the deceased's estate. The deceased had severed a joint tenancy over a property shortly before his death, transferring his interest to the second wife. The applicant sought provision from the estate, which was relatively small and required the sale of the only asset to settle an outstanding mortgage and other debts.

The primary legal issue before the court was whether the applicant was entitled to a provision from the estate of the deceased, despite the interest in the property being transferred to the second wife. The court had to consider the principles of family provision under the Family Law Act 1975, particularly whether the deceased had made "reasonable financial provision" for the applicant. The court also needed to determine the appropriate apportionment of costs and how to handle the outstanding mortgage on the property.

In delivering the judgment, the court acknowledged the statutory presumption under section 90 of the Family Law Act that a deceased person has made reasonable financial provision for their spouse if the spouse is provided for under a will or intestacy. However, the court found that the circumstances of this case warranted a departure from this presumption. The court concluded that the applicant was entitled to a provision from the estate. It ordered the sale of the property to settle the outstanding mortgage and debts, with the surplus to be divided between the second wife and the applicant. The court also made orders regarding the apportionment of costs between the parties.

The final orders included the sale of the property, with proceeds used to settle the mortgage and debts, and the remaining amount divided between the second wife and the applicant. The court also made specific orders for the apportionment of costs, ensuring that both parties would bear their respective costs of the application.

Orders