Cummings v De Santis; De Santis v De Santis [2002] NSWSC 729

New South Wales Supreme Court

CITATION : Cummings v De Santis; De Santis v De Santis [2002] NSWSC 729 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3289/00; 1009/02 HEARING DATE(S) : 04/04/02, 05/04/02 JUDGMENT DATE : 21 August 2002

PARTIES : Pamela Helen Cummings v David De Santis Mary De Santis v David De Santis & Ors JUDGMENT OF : Acting Justice Macready at 1

Mr LJ Ellison for Pamela Cummings COUNSEL : Mr J.O. Anderson for Mary De Santis Mr R. Weaver for David De Santis Gibson Owen Lawyer Inc for Pamela Cummings SOLICITORS : Jackson Smith for Mary De Santis M.R. Barber & Associates for David De Santis CATCHWORDS : Family Provision. Applications by the widow and the de facto partner of deceased. Small legacy to the widow and the claim of the de facto partner dismissed. - Succession. Construction of bequest containing an expression of purpose. Whether bequest entitles the beneficiaries to call for a transfer of a legal life estate. DECISION : Paragraph 40

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ACTING JUSTICE MACREADY

Wednesday 21 August 2002

3289/2000 PAMELA HELEN CUMMINGS v DAVID DE SANTIS – ESTATE OF ANTONIO DE SANTIS 1009/2002 MARY DE SANTIS v DAVID DE SANTIS & OTHERS JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the late Antonio De Santis who died on 26 January 1999. The deceased was survived by his wife, three sons and the plaintiff in matter number 3289 of 2000. The plaintiff, Mrs Cummings, lived with the deceased as his de facto wife for the last 15 years of his life. The deceased's widow has now brought proceedings in matter number 1009 of 2002 and I have heard both matters together with the evidence in one being evidence in the other. 2 The deceased's last will was made on 20 January 1999. Mrs Cummings and the defendant David De Santis were appointed executors and trustees of the will. The will contained a number of specific bequests before giving the residue of his estate to Mrs Cummings in clause 8. The specific bequests which are important are, first, the bequest in clause 3 which dealt with the deceased's one-third share in the property known as 72-74 Stanley Street, East Sydney. The terms of that bequest is as follows: -- "I give my one-third undivided share in the property known as 72-74 Stanley Street, East Sydney in the said State to my Trustees upon trust to transfer to my spouse Mary De Santis and to Pamela Helen Cummings in equal shares as joint tenants for life for the purposes of receipt of all my share of nett income from the said property and no income received from the said property after my death shall be apportioned to or treated as capital of my estate and the whole shall belong to the said Mary De Santis and Pamela Helen Cummings in equal shares. The said life estate shall be terminable in respect of the share of either or both of the beneficiaries on remarriage of or entering into a de facto relationship. I give the remainder to each of my sons David Francesco De Santis, Roberto De Santis and James De Santis in equal shares as tenants in common." 3 The ultimate position reached in the matter was that apart from a period many years ago when there were some book entries showing rent paid by the partnership for the property, it has not been rented for many years. The business in which the deceased was a partner operated "Bill and Toni's" restaurant at the premises and did so pursuant to an arrangement whereby the business occupied the real estate which is also owned by the partners in the business for no fee. 4 Clause 4 of the will gave the deceased's interest in the property at Major Bay Road, Concord to Mrs Cummings. It was the family home which had been occupied by the deceased and Mrs Cummings for many years and was owned by them as tenants in common. 5 In clause 5 the deceased purported to leave his interest in a home which he owned jointly with his wife, Mary De Santis, to his son James. That bequest was ineffective as the property was owned by the deceased and Mary De Santis as joint tenants and accordingly passed to her by virtue of survivorship. 6 In clause 6 the deceased gave his interest in the unit in Western Australia to his sons together with Mrs Cummings and Adam Cummings. It was ineffective as the deceased was the joint tenant in respect of that property. Accordingly his interest passed to Mrs Cummings and her mother. The unit was one which had been purchased to provide accommodation for Mrs Cummings' mother in her retirement. 7 In clause 7 the deceased gave his interest in the business "Bill and Toni's" restaurant to his three sons David, Roberto, and James. They have continued to operate the business in partnership with the deceased's former partners up to and including the time of the hearing before me. 8 At the date of death the estate of the deceased consisted of the following assets: --