Russoniello v Russoniello

[2006] NSWSC 557

CITATION:	Russoniello v Russoniello [2006] NSWSC 557
HEARING DATE(S):	24 and 26 April 2006
JUDGMENT DATE :	9 June 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice McLaughlin at 1
DECISION:	(1). I order that, in addition to the benefits given to him by the will of the late Incoronata Russoniello (“the Deceased”), the Plaintiff receive a legacy in the sum of $20,000, such legacy not to bear interest if paid on or before 9 August 2006, and if not so paid to bear interest at the rates prescribed for unpaid legacies by the Wills, Probate and Administration Act 1898. (2). I order that the costs of the Plaintiff on the party and party basis, and the costs of the Defendants on the indemnity basis be paid out of the estate of the Deceased. (3). The exhibits (other than exhibit A) may be returned.
CATCHWORDS:	Succession. Family Provision. Claim by adult stepson. Financial and material circumstances of Plaintiff. Obligation upon applicant for provision to place before the Court as fully and as frankly as possible all available information concerning his financial and material circumstances. Asserted needs of Plaintiff. Whether Plaintiff has been left without adequate provision for his maintenance. Plaintiff must establish his claim upon its own merits.
LEGISLATION CITED:	Family Provision Act 1982 Wills, Probate and Administration Act 1898
CASES CITED:	Blore v Lang (1960) 104 CLR 124 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 79 ALJR 731
PARTIES:	Pompeo Russoniello (Plaintiff) Ubaldo Russoniello (First Defendant) Rosetta Russoniello (Second Defendant)
FILE NUMBER(S):	SC 6032 of 2004
COUNSEL:	Mr. M. Rollinson (Plaintiff) Mr. P. O'Loughlin (Defendants)
SOLICITORS:	V. F. Stanizzo (Plaintiff) M. Russoniello (Defendants)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 9 June 2006

6032 of 2004 POMPEO ROSSONIELLO –v- UBALDO ROSSONIELLO

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 9 November 2004 Pompeo Russoniello claims an order for provision for his maintenance, education and advancement in life out of the estate of his late stepmother, Incoronata Russoniello (to whom I shall refer as “the Deceased”).

3 The Deceased died, aged 83, on 18 June 2004. She left a will dated 11 February 2002, probate whereof was on 3 September 2004 granted to Ubaldo Russoniello and Rosetta Russoniello, the executors named in such will (who are the Defendants to the present proceedings).

4 The Deceased was a widow at the time of her death, her husband Erberto Russoniello having died on 17 July 1999. Erberto Russoniello had married twice. Of his first marriage were born two children, being Leonardo (known as Nardino), who was born in Italy on 11 October 1939 and is presently aged 66, and Pompeo (the present Plaintiff), who was born in Italy on 6 May 1950 and is presently aged 56.

5 Very shortly after the birth of Pompeo his mother died in Italy. His father Erberto Russoniello was in Australia at that time, having come to this country in 1950 or 1951. On 27 October 1952 Erberto, who was still in Australia, and the Deceased, who was in Italy at the time, married by proxy. Leonardo came to Australia in December 1957. In 1959 the Deceased and the Plaintiff also came to Australia, joining Erberto and Leonardo. Of the marriage of Erberto and the Deceased were subsequently born two children, Ubaldo, who was born on 12 October 1961 and is presently aged 44, and Rosetta, who was born on 19 February 1963 and is presently aged 43.

6 Erberto, who died on 17 July 1999 (aged 83), left the entirety of his estate to the Deceased. That estate included some land in Italy, located at Sant’ Andrea, in the Conza Della Campania. By her will the Deceased, to the extent that she had the right to do so, gave that land equally among the four children of Erberto. There appears to be considerable doubt and uncertainty as to the value of that land, or even its size. The Deceased gave the balance of her estate between the two Defendants, who were her own natural children.

7 Clause 3 of the will is in the following terms,

I declare that during our lifetime my husband and I lent to my husband’s son POMPEO RUSSONIELLO the sum of twenty five thousand dollars. This money was a loan which has not been repaid. I release and it was my husband’s intention to release the said POMPEO RUSSONIELLO from all debts owed to us particularly this loan.

8 Apart from the land in Italy, the inventory of property discloses the following assets of the Deceased at the time of her death, and the estimated values thereof.

House property situate at and known as 4 Hurry Crescent, Warrawong $350,000
IBM account $7,508
IBM term deposit $195,943
445 AMP shares $3,264
Sigma Motor Vehicle $500

9 The Defendants subsequently provided updating information concerning the assets of the estate. They estimated the value of the house property at 4 Hurry Crescent, Warrawong as having a value of between $310,000 and $360,000. (That property had been the family home of the Deceased, her husband, her children and her stepchildren.) The IBM term deposit, which remains in the name of the Deceased, had a value as at the date of maturity, 28 February 2006, of $212,634. There was no alteration in the values ascribed to the shareholding of the Deceased in AMP, the motor vehicle, or the household furniture and effects.

10 The Defendants estimated, upon information provided by their half-brother Leonardo, that the land in Italy is worth about 7,000 Euros, that being the equivalent of about $12,000. However, the Defendants stated that their enquiries of the appropriate officer at the Council in San Andrea [sic] have proved confusing and contradictory. Funds held by the solicitor for the Defendants in his trust account are in an amount of $1,580.

11 The Defendants stated that they had been informed by their solicitor that it was possible that a small income tax liability would be incurred upon the interest earned by the term deposit, and that there could also be a liability for Capital Gains Tax upon the eventual sale of the house property at Warrawong.

12 The Defendants said that they had paid the following liabilities since the death of the Deceased:

Funeral and cemetery expenses - $12,884

Solicitor’s costs and disbursements on obtaining probate - $2,916

13 It was the evidence of the Defendants that, subject to the payment of the costs associated with the present proceedings, the likely value of the net estate of the Deceased would be about $551,000.

14 In calculating the value of the estate available for distribution the costs of the present proceedings must be taken into consideration, since the Plaintiff, if successful, will be entitled to receive his costs out of the estate, whilst the Defendants, irrespective of the outcome of the proceedings, will also be entitled to receive their costs out of the estate. It was estimated on behalf of the Plaintiff that his costs will total between $40,000 and $45,000 whilst it was estimated on the part of the Defendants that their costs will total a little over $44,000. That is, the total costs of the present proceedings will be between $84,000 and $89,000.

15 It is also relevant to the calculation of the value of the estate available for distribution that Leonardo Russoniello by summons 5716 of 2005 claimed an order for provision for his maintenance out of the estate of the Deceased. Those proceedings were settled by way of consent orders made on 24 April 2006, that being the first day of the hearing of the present proceedings. By those consent orders Leonardo received, in addition to the provision made for him by the will of the Decease, a legacy of $30,000, together with his costs in an agreed amount of $22,000. When that legacy and those costs are taken into account, the likely value of the estate of the Deceased available for distribution will be in the range of $410,000 to $415,000.

16 The Plaintiff left school in 1965, at the age of fifteen, having completed his second year of high school. The Plaintiff thereupon worked with his brother Leonardo in a retail business (a fruit shop) which had been acquired by their father. According to the Plaintiff, he had been persuaded by his father to leave school in order to work in that business. The Defendants denied that assertion. According to them, it was the Plaintiff who wanted to leave school, whilst his father was desirous that the Plaintiff should continue his education. The Plaintiff said that he had worked in the family business without pay for a period of three years. There was considerable dispute between the parties concerning the extent of assistance which the Plaintiff had provided to his father in the fruit shop. Similarly, there was considerable dispute between the parties concerning the benefits which the Plaintiff had received from his father and his step-mother after he left school and after he married.

17 After ceasing to work in the fruit shop the Plaintiff was employed as a labourer, first by BHP for three years, then by John Lysaght. Whilst in that latter employment he suffered an injury at work. In consequence he received (apparently in the mid-1970s) a worker’s compensation payment of about $15,000. He was then retrenched by John Lysaght. Subsequently, in consequence of a further work related accident, in which he sustained injury to his head and neck, whilst employed as a labourer by EPT (where he remained until 1985), the Plaintiff received a further worker’s compensation payment of $45,000 in about 1986-1987. He was not able to return to work for three or four years, and has not been in employment since 1990.

18 Since 1991 the Plaintiff has been in receipt of a disability pension in consequence of his work injuries, which is currently in an amount of about $200 a week. The Plaintiff’s wife (whom he married in 1972) is also in receipt of welfare benefits in an amount of $200 a week (the precise nature of which benefits did not emerge with any clarity from the Plaintiff’s evidence). His wife did not provide any evidence. The present combined income of the Plaintiff and his wife totals $400 a week.

19 According to the Plaintiff, with the moneys which he received by way of the compensation settlement in about 1986-1987 he and his wife purchased land at Port Kembla for $32,000, upon which they erected a residence. For that purpose the Plaintiff borrowed the sum of $25,000 from his father and the Deceased. It was the evidence of the Plaintiff that he repaid the entirety of that loan. The Defendants agreed that of that loan amount the Plaintiff had repaid $12,500. They asserted that the balance of $12,500 remained outstanding.

20 In about 1999 the Plaintiff and his wife sold their Port Kembla residence for $245,000 and purchased a smaller and less expensive residence at Warrawong for $149,000. It was the evidence of the Plaintiff that the reason for the sale of the Port Kembla residence and the purchase of the less expensive residence at Warrawong was in order to meet a costs liability of the Plaintiff arising out of criminal charges which, according to the Plaintiff, had been instituted against him at the instigation of the Defendants.

21 According to the Plaintiff’s affidavit evidence, his only significant asset was the residence which he owns conjointly with his wife at 79C Vermont Road, Warrawong, and to which he ascribes a present value of $270,000. The only other assets disclosed in his affidavit evidence were the furniture and contents of their residence (having an estimated value of $3,000), a Mitsubishi Magna motor car (having an estimated value of $5,000), and savings of $500 held in an account with Westpac.

22 In his affidavit evidence the Plaintiff said that the weekly outgoings of himself and his wife totalled $500 - $600. However, he did not offer any particulars of those outgoings. On the second day of the hearing the Plaintiff presented (as exhibit A) a breakdown of those weekly expenses, totalling $548.

23 The Plaintiff said that he takes regular medication, which he said has been prescribed for him by his general medical practitioner, Dr. O’Halloran. No evidence was presented concerning the medical problems which require the Plaintiff to take such medication. The Plaintiff said that his wife takes regular medication, to control a menopausal depressive condition from which she suffers.

24 The Plaintiff and his wife have twin adult children, who are no longer dependent upon them.

25 The claim of the Plaintiff must be approached in the light of the competing claims of the Defendants, who are the chief chosen objects of the testamentary beneficence of the Deceased.

26 Ubaldo Russoniello, the First Defendant, was born on 12 October 1961, and is presently aged 44. He left school in 1977 after completing fourth form. He subsequently pursued an apprenticeship as a fitter and turner with BHP from 1979 to 1983. The First Defendant was later employed as a machinist and he now works as a motor mechanic. Ubaldo (to whom I shall for convenience, and without intending my disrespect, so refer to him), who lived at home with his parents until April 1997, received financial assistance from his father and mother over the years. When he was aged about 17 or 18 his father advanced to Ubaldo $2,000 with which to purchased a motor car. Ubaldo repaid his father that advance within twelve months. In 1989, his father gave Ubaldo $10,500, which he then used to set up a business at Fairy Meadow. His father also paid $800 for a machine lathe to encourage Ubaldo in that business. However, that business was not successful, and, according to Ubaldo, he lost between $20,000 and $30,000 in that venture.

27 Whilst living at home Ubaldo usually paid board to his parents in an amount of $40 to $50 a fortnight. However, whilst he was repaying his father for the advance in respect to the motor car, his parents did not require him to pay board.

28 In about 2002 or 2003 Ubaldo was involved in a motor vehicle accident. He borrowed $4,000 from his mother, apparently to meet a liability for damages arising from that accident. He stated that, although he offered to repay that sum, the Deceased said that she did not want repayment.

29 In April 1997 Ubaldo purchased a one bedroom home unit at Campbell Street, Wollongong for $95,000. For that purpose he borrowed $71,000 from the St. George Bank, the balance of the purchase being funded from his own savings. On completion of that purchase Ubaldo left the family home and moved into the home unit, where he continues to reside.

30 Ubaldo’s present assets consist of:

Home unit situate at and known as 1/40 Campbell Street, Wollongong, having an estimated value of $170,000.

Daihatsu Applause motor vehicle, having an estimated value of $1,500

Savings, in an estimated amount of $2,000

Furniture and household contents, of no commercial value

Tools (including lathe) having an estimated value of $2,000.

31 In addition, Ubaldo has superannuation entitlements totalling a little over $11,000.

32 Ubaldo’s principal liability is the mortgage debt which he owes to the St. George Bank, presently in an amount of $75,000. He said that he had other bills amounting to about $2,000.

33 The reason for the increase in Ubaldo’s liability to the St. George Bank is that in 2001 he purchased a 1972 Chevrolet Camaro motor vehicle, which he intended to restore, as a hobby. For that purpose he borrowed $20,000 from the bank, thus increasing the amount outstanding on his mortgage by that sum. Ubaldo has not completed the restoration of that motor vehicle, and does not expect to make any profit if he sells it when its restoration is eventually completed.

34 Ubaldo presently earns $700 a week gross in his employment as a motor mechanic with Illawarra Star Mercedes, where he has been working since 2003.

35 Ubaldo, who is unmarried, expressed a desire to enter into matrimony, stating that in such event he would require a larger residence.

36 The Second Defendant, Rosetta Rossoniello (to whom I shall for convenience, and without intending any disrespect, so refer to her), was born on 19 February 1963 and is presently aged 43. She left school in 1979, in Year 10. Towards the end of that school year Rosetta worked as an assistant in a pharmacy at Warrawong. Upon leaving school she worked full-time in that pharmacy until about 1982 or 1983. Whilst in that employment Rosetta paid board to her parents. In 1985 she commenced employment in a fruit shop at Warrawong where she worked full-time for 10 years. Throughout that period Rosetta continued to live at home and paid board to her parents of $80 a fortnight. After giving up her employment in 1995 Rosetta essentially helped her mother in looking after her father. Ultimately she became the full-time carer of her parents, and received a carer’s pension from the Department of Social Security. Rosetta said that at the request of her parents she stopped paying board to them when she commenced to look after them.

37 Rosetta is unmarried. She always lived at home with her parents. Her assets consist of an amount of $131,328 in savings, held in an IMB term deposit. She has a small superannuation entitlement of $1,000. Although she formerly owned a motor car of her own, she apparently in more recent times always used her father’s motor car, which is a 1978 Sigma, to which she ascribes a value of about $500. Rosetta said that she needed a new motor car, and presented evidence from advertisements in the Illawarra Mercury concerning the cost of an appropriate motor vehicle.

38 Rosetta also referred to her need for accommodation, once the Hurry Crescent property is sold. The results of enquires made by her of real estate agents in the Warrawong area reveal that an appropriate home unit in the area of Warrawong/Port Kembla would cost between $165,000 and $290,000.

39 Rosetta is in receipt of unemployment benefits in an amount of $157 a week, and also receives interest on her savings in an amount of $135 a week (making her total weekly income $292). In her affidavit of 28 February 2005 she expressed a desire to return to work, but said that her lack of education and skills would make it difficult for her to do so.

40 A very considerable quantity of evidence was presented by each of the parties concerning the relationship of each party (and especially the Plaintiff) with the Deceased and with the father of the parties. Much of that evidence related to incidents concerning financial matters within the family, especially concerning a green metal box (said to have contained cash), which was alleged to have been in the custody of the Plaintiff and withheld by him despite requests for its return made by the Deceased. Much of the evidence also concerned monetary advances asserted by the Defendants to have been made to the Plaintiff by his father and the Deceased, and denials by the Plaintiff of such assertions.

41 It is in the light of the foregoing evidence and especially the financial and material circumstances of the parties that the Court must proceed to a consideration to the claim of each Plaintiff.

42 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file.

43 The Plaintiff asserts that he is an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act, in that he was a member of the same household as the Deceased and was partly dependent upon the Deceased. It was not in dispute that throughout his formative years and until he married, the Plaintiff was a member of the same household as the Deceased. Although she was his stepmother, the Plaintiff was brought up by the Deceased as if he were her own child. Within the family there was no distinction made among the four children. I am satisfied that the Plaintiff is an eligible within paragraph (d) of the foregoing definition. The Defendants did not dispute the status of the Plaintiff as an eligible person. As such, the Plaintiff has the standing to bring the present proceedings.

44 It will be appreciated that each Defendant, as a child of the Deceased, is an eligible person in relation to the Deceased, each coming within paragraph (b) of the foregoing definition. Apart from the Plaintiff and the two Defendants, the only other eligible person in relation to the Deceased is the Plaintiff’s brother Leonardo, whose claim for provision has been settled.

45 At the outset, it should be emphasised that an applicant for an order for provision has an obligation to place before the Court as fully and as frankly as possible all relevant evidence concerning his financial and material circumstances. The Plaintiff in the instant case has failed to do so. He made no reference in his affidavit evidence as to the manner of the disbursement of the balance of the proceeds of sale of his Port Kembla residence and the purchase of his present residence at Warrawong. In particular, he did not refer to $21,000 being expended upon the purchase of his Mitsubishi Magna motor car in 1997, or to the deposit of $5,000 in his Westpac account or the deposit of $5,000 in his wife’s Westpac account, or to what ultimately happened to those amounts. (The Plaintiff’s Westpac account presently has a credit balance of only $600.) No reference was made to interest earned upon those amounts. I have already observed that it was only on the second day of the hearing that the Plaintiff presented a breakdown of his weekly expenses. No documentary material was provided in support of those expenses.

46 I have already referred to the fact that a considerable quantity of evidence was placed before the Court concerning the respective relationships between each of the Plaintiff and the Defendants with their father and with the Deceased, and between those parties with each other.

47 It cannot be emphasised too strongly that an applicant for an order for provision must establish his claim upon its own merits. That claim cannot be enhanced by establishing, if such be the case, that the chosen objects of the testamentary beneficence of the Deceased, if they themselves had been omitted from such testamentary provision, would not have been successful in an application for provision. In this regard it is appropriate that I should set forth the following salutary admonition of Windeyer J in the High Court of Australia in Blore v Lang (1960) 104 CLR 124 at 137,

The jurisdiction under the Testator’s Family Maintenance Act [the statutory predecessor to the Family Provision Act ] is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case.

48 Further, consonant with the foregoing admonition of Windeyer J, it should be recognised that an order for provision is not made as a reward for past services on the part of an applicant. Neither is an order for provision withheld as punishment for perceived bad conduct on the part of the applicant.

49 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin (2005) 79 ALJR 731) the Court must determine whether in consequence of the terms of the will of the Deceased the Plaintiff has been left without adequate provision for his proper maintenance.

50 Although the Plaintiff and his wife are apparently able to live within their means, their lifestyle is modest, and they have no resources to meet any unexpected contingencies.

51 The Defendant, however, pointed to the fact that the Plaintiff was not presently looking for work. Whilst the evidence was far from complete in this regard, I am prepared to infer from the fact that the Plaintiff is in receipt of a disability pension from the social security authorities that he in fact suffers from an ongoing disability which prevents him from working.

52 The Defendant pointed to the provision of the will by which the Deceased forgave the indebtedness of the Plaintiff to the Deceased in the sum of $25,000. That provision of the will assumes that the Plaintiff was indebted to the Deceased in that sum. It has been conceded on behalf of the Defendants that the Plaintiff had repaid $12,500 of that indebtedness to his father and the Deceased. Accordingly, the effect of the provision of the will is to benefit the Defendant by, at most, $12,500. As I have already recorded, it was the evidence of the Plaintiff that he had repaid the totality of the loan of $25,000.

53 Since the Plaintiff is an eligible person only within paragraph (d) of the definition of that phrase contained in section 6(1) of the Act, it is necessary, pursuant to section 9(1), that he establish that there are factors which warrant the making of the application. It was submitted on behalf of the Plaintiff that such factors were, first, that the Plaintiff was treated as a child of the Deceased. The Defendants did not dispute that that was so, and that that fact constituted a factor warranting the making of the application. It was submitted on behalf of the Plaintiff, further, that another factor warranting the making of the application was the close and affectionate relationship which the Plaintiff had with both his father and the Deceased, and that they did not distinguish between the four children born to Erberto Russoniello.

54 The Defendants, however, submitted that the evidence of any need on the part of the Plaintiff should be regarded with suspicion, and pointed to the fact that no evidence of need was presented until the first day of the hearing. Further, that there was no evidence from the Plaintiff’s wife, which might have been expected. The Defendants also pointed to the fact that exhibit A (which purported to set forth the weekly outgoings of the Plaintiff) not only did not materialise until late on the afternoon of the first day of the hearing, but that no material was presented in support of the figures contained in that document. Further, that there was no report provided by any doctor to say that the Plaintiff required the drugs which he takes, or why he needed them; neither were any receipts presented from any pharmacists to substantiate the assertion that the Plaintiff obtains those drugs and the amounts which he pays for them. The Defendants submitted that no medical evidence supported the Plaintiff’s allegation that he was unable to work. The Defendants posed, rhetorically, the question of why, if the Plaintiff wished to increase his income, he did not work. The Defendants also pointed to the absence of any evidence of the effect upon his disability pension of any legacy which he might receive in the present proceedings.

55 Since the Plaintiff owns a house, and a motor car and has some income, and since his children are no longer dependent upon him the Defendants submit that he has not established any relevant need.

56 There is force in at least some of the foregoing submissions. However, the Court is required by section 7 of the Family Provision Act to consider the claim of the Plaintiff, “having regard to the circumstances at the time the order is made”. Those circumstances include the fact that the Plaintiff and his wife are on a limited income, consisting almost entirely of the disability pension received by the Plaintiff and a pension in an equivalent amount received by his wife from the Department of Social Security. The fact that the Plaintiff might have the potential to obtain a higher income does not of itself mean that, in the circumstances which presently obtain, the Plaintiff does not have any relevant need.

57 I am satisfied that the Plaintiff has been left without adequate provision for his maintenance, and that he has established an entitlement to receive from the estate of the Deceased a relatively small legacy, which will provide some enhancement of the modest lifestyle of himself and his wife, and also will provide a fund to meet unexpected contingencies. In my conclusion the Plaintiff has established an entitlement to receive, in addition to the benefits given to him by the will of the Deceased, a legacy in the sum of $20,000.

58 The claim of the Plaintiff must, however, be approached in the light of competing claims upon the testamentary bounty of the Deceased. The only persons having such competing claims (since the claim of Leonardo Russoniello has been resolved by way of consent orders made in proceedings 5716 of 2004 on 24 April 2006) are the claims of the Defendants, who are the chief chosen objects of the testamentary beneficence of the Deceased. The competing claims of the Defendants cannot have the effect of enhancing the claim of the Plaintiff. They may, however, have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise have established. Where, as here, the value of the distributable estate, which (apart from the land in Italy) under the terms of the will of the Deceased will be shared equally between the two Defendants, amounts to at least $410,000, I do not consider that the competing claims of the Defendants are such as would have the effect of reducing, let alone extinguishing, an order for provision in favour of the Plaintiff in an amount of $20,000.

59 Accordingly, I make the following orders:

(1). I order that, in addition to the benefits given to him by the will of the late Incoronata Russoniello (“the Deceased”), the Plaintiff receive a legacy in the sum of $20,000, such legacy not to bear interest if paid on or before 9 August 2006, and if not so paid to bear interest at the rates prescribed for unpaid legacies by the Wills, Probate and Administration Act 1898.

(2). I order that the costs of the Plaintiff on the party and party basis, and the costs of the Defendants on the indemnity basis be paid out of the estate of the Deceased.

(3). The exhibits (other than exhibit A) may be returned.

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