Pagano & Ors v Ruello [2001] NSWSC 63

New South Wales Supreme Court

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

Flavia Pagano (P1) PARTIES : 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 Harris v Ashdown (1985) 3 NSWLR 193 Hoppe v McDavitt (1961) VR 399, 401 CASES CITED : 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 estate is to be divided equally amongst my said daughters, ORSOLA, FRANCES, FLALVIA and BENEDETTA" 4 As at the date of the testator's death the defendant was single, having been divorced, and was living at the Leichhardt property with the testator. The plaintiffs were all married and living elsewhere. 5 In relation to clause 4 of the will of the testator, Flavia Pagano, Frances Amante and Orsola Youssef, daughters of the testator, claim against Benedetta Ruello, the defendant, another daughter of the testator, declarations that, on the proper construction of the will of the testator, and in the events which have occurred:- (1) The defendant has left the house (6 Thornley Street, Leichhardt) and resides at some other address (2) "Marries" means and/or includes the assumption of permanent de facto relationship (3) The defendant "married" (4) The life tenancy of the defendant is at an end (5) The right of the defendant granted under the will to reside at 6 Thornley Street Leichhardt was conditional upon her keeping the home in a proper state of repair (6) That the defendant failed to keep the home in a proper state of repair as required by the will. (7) That the right of the defendant to reside at 6 Thornley Street Leichhardt was terminated on the failure of the defendant to keep the house in a proper state of repair (8) That the right of the defendant granted under the will to reside at 6 Thornley Street Leichhardt has been abandoned by the defendant."