Vincent v Zanatta

[1999] NSWSC 790

CITATION:	Vincent v Zanatta [1999] NSWSC 790
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	1365/95
HEARING DATE(S):	24 and 25 February 1999
JUDGMENT DATE:	4 August 1999
PARTIES :	Susan Vincent (P) Nadia Zanatta (D1) Domenico Zanatta (D2)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. P. Braham (P) Mr. P. Hallen, S.C., (D)
SOLICITORS:	Hilton King Solicitors (P) E. C. Curtis & Co (D)
CATCHWORDS:	Family Provision; Claim by adult daughter; Plaintiff is only eligible person; Plaintiff's sole income is disability pension; Conduct disentitling; Relationship between plaintiff and deceased; Complaints made by deceased; Whether complaints have been substantiated; Effect of such complaints; Previous will named plaintiff as sole executor and sole beneficiary; Competing claims upon bounty of deceased; Need of plaintiff is for accommodation; House property must be sold to meet costs of present proceedings; Appropriate order to be made for plaintiff.
ACTS CITED:	Family Provision Act 1982
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201
DECISION:	1. I order that, in addition to the benefit given to her by the will of the late Romano Vincetich ("the deceased"), the plaintiff receive two-thirds of the residuary estate of the deceased; 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 may be returned.

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Wednesday, 4 August 1999

1365 of 1995 SUSAN VINCENT -v- NADIA ZANATTA AND DOMENICO ZANATTA

JUDGMENT

1    MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 17 February 1995 Susan Vincent (née Susanna Vincetich), the plaintiff, claims an order for provision for her maintenance and advancement in life out of the estate of her late father, Romano Vincetich (to whom I shall refer “the deceased”). 3 The deceased died on 28 August 1994, aged 86 years. He left a will dated 12 November 1993, probate whereof was on 26 October 1994 granted to Nadia Zanatta and Domenico Zanatta, the executors named in such will (who are the defendants to the present proceedings). 4 By that will the deceased gave to the plaintiff a legacy of $20,000. He gave the residue of his estate to be divided among the two defendants and their three children (being Davide Zanatta, Sandra Capogreco and Jason Zanatta). 5 Clause 5 of the will is in the following terms,

I DECLARE that I have not made any further provision for my said daughter SUSANNA VINCETICH because she has mistreated me and has done nothing for me.

(I would here interpolate that the plaintiff had anglicised her name when she was aged about fifteen with the concurrence of the deceased.)

6 The assets of the deceased, as disclosed in the Inventory of Property, consisted of a house property at 11 Waterloo Street, Bulli (to which was ascribed a value of $120,000), the contents of that house property (to which was ascribed a value of $200), and moneys held in banks on deposit (totalling a little over $53,000). 7 The value of the house property has increased since the date of the death of the deceased, and valuation evidence placed before the Court indicated that its present value was $190,000. 8 The plaintiff (who was born on 14 September 1953, and is presently aged 45) is the only surviving child of the deceased. As such, she is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. Accordingly, she has the standing to bring the present proceedings. Indeed, the plaintiff is the only eligible person in relation to the deceased. Neither of the defendants (who are respectively the niece of the deceased and her husband) is an eligible person in relation to the deceased; neither are any of their children such eligible persons. 9    The legacy of $20,000 to the plaintiff has been paid . The present nature of the assets in the estate is set forth in the affidavit of Ernest Charles Curtis, the solicitor for the defendants, sworn 18 February 1999. The assets consist of the house property at Bulli and cash in hand. The amount of cash in hand has diminished to $7,909.82 (in consequence of payment of insurance premiums, Wollongong Council rates, and legal costs associated with the present proceedings). Mr Curtis in that affidavit estimated that the costs of the defendant executors of the present proceedings will total $40,318. It will be appreciated that the amount of cash held by the defendants will be exhausted in the payment of their costs of the present proceedings, and that the defendants will then be entitled to sell the Bulli house in order to meet the balance of their costs. 10    On behalf of the plaintiff there was filed an affidavit by her solicitor, Gregory John Woods, affirmed 17 February 1999, which set forth that the plaintiff had incurred and was expected to incur in respect to the present proceedings costs totalling $40,681. It was, however, acknowledged by Counsel for the plaintiff that those costs were on the solicitor and client basis, rather than on the party and party basis. 11    When allowance is made for the costs of the plaintiff, as well as those of the defendant, it is unlikely that the net distributable estate will exceed $110,000. 12    The plaintiff is in receipt of a disability pension, which is her only source of income. It would appear that that pension has been allowed to her as a result of a chronic back problem from which she suffers, being described as a degenerative condition of the lower lumbar spine. According to the plaintiff that condition is rheumatoid arthritis which she developed at the age of fifteen years. The disability arising out of that condition has gradually worsened, with consequent limitation upon her ability to work. She has not been in employment since March 1991, at which time she was granted her disability pension. That pension is now in an amount of $372.80 a fortnight. The plaintiff has no other income. 13    Although there was no specific evidence in this regard, I infer that the plaintiff has no assets apart from personal and household effects, and that she has no liabilities. 14    The plaintiff since the death of the deceased has continued to reside in the house property at 11 Waterloo Street, Bulli. Although she pays such personally incurred outgoings as telephone and electricity for her occupation of that house property, she does not pay any council rates or the cost of repairs, and she does not pay any rent or occupation fee. 15    In her affidavit of 12 June 1998 the plaintiff set forth details of her fortnightly expenses, totalling $372.50 (being almost the precise amount of her income). 16    In performing the first stage in the two stage process recognised by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208 (per Mason CJ, Deane and McHugh JJ), the Court must determine whether the plaintiff has been left without adequate provision for her proper maintenance, education and advancement in life. 17 Upon the foregoing summary of the evidence concerning the financial and material circumstances of the plaintiff, it is apparent that she has been left without adequate provision for her proper maintenance. 18 However, the defendants assert that the plaintiff has been guilty of conduct disentitling her from the benefit of any order for provision an entitlement to which she might otherwise have established. 19 The hearing very largely concentrated upon the allegations made by the defendants concerning such disentitling conduct on the part of the plaintiff, and the responses of the plaintiff to those allegations. 20 I have already recorded the statement made by the deceased in clause 5 of his will, containing the allegation by him that the plaintiff had “mistreated” the deceased and had “done nothing” for him. That will was executed on 12 November 1993. 21 Less than two months later, on 3 January 1994 the deceased, who at that time was a resident in the Canterbury District Nursing Home, dictated to the first defendant a letter which she then typed out for him. That letter was written in Italian. On the same date the first defendant arranged for a solicitor, Mary Salama, of 509 Burwood Road, Belmore, to attend at the nursing home in order to witness the execution by the deceased of a power of attorney in favour of the first defendant. That power of attorney was witnessed by Mrs Salama, who also, at the request of the deceased, witnessed the letter which had been prepared by the first defendant at the dictation of the deceased --- I gather Mrs Salama to have been fluent in the Italian language. That letter is annexure A to the affidavit of the first defendant sworn 28 March 1996. The letter is in Italian. However, a translation into English appears upon annexure A as follows,

I, Romano Vincetich, declare that I have changed my will because my daughter Susanna has never contributed anything in the home (financially or in daily help) & I think she has no right to the toils of my wife and I.
She has only mistreated me while I was in my own home. She has taken a large amount of money and all my wife’s & my jewellery. I now leave her only the sum of $20,000. I leave nothing else of my property or the contents of my home.

22 The evidence discloses that the plaintiff, who to that time had been residing with her parents, left home shortly before her twenty-first birthday, which would have been in 1974. It was asserted on behalf of the defendants that she remained away from home for a period of about ten years, and that her contact with her parents during that period was infrequent and irregular. 23 The plaintiff, however, denied the assertion that she had moved away from home for ten years from 1974, and said that the period of her absence was for only about eighteen months, and that throughout that period she maintained regular contact with her parents both by letter and by telephone. The plaintiff said also that upon her return to the family home at Bulli she resided there continuously, firstly with both her parents and then, after the death of her mother in May 1989, with her father, until the end of November 1992 when she moved to Queensland for about three months, returning to Bulli in early March 1993. There was admitted into evidence a considerable quantity of cards and letters which the plaintiff during each of those absences from Bulli had sent to her mother and to her father, which cards and letters been retained by her parents. 24 Evidence was given by the defendants of various complaints made by the deceased concerning the attitude of the plaintiff towards him. However, it would appear that any such complaints were made, substantially, only after the death of the plaintiff’s mother in May 1989. 25 Concerning the statement made by the deceased in his will relating to the conduct of the plaintiff and concerning the various complaints about her attitude towards him which were attributed to the deceased by the defendants, it is relevant here to record that on 6 October 1989 the deceased made a will by which he appointed the plaintiff his sole executor and gave to her the entirety of his estate. (It is interesting to note that one of the witnesses to that will was the second defendant, Nadia Zanatta, who also translated it into Italian for the deceased at the time of its execution.) 26 According to the evidence of the first defendant the deceased, after the death of his wife, on one occasion said to the first defendant that he did not approve of the plaintiff’s drinking or of her lesbian lifestyle. 27 A considerable quantity of evidence was directed to an incident in about 1982 or 1983 when the second defendant was requested by the plaintiff’s mother to travel from his residence at Woonona to Sydney, in order to collect the plaintiff’s belongings and to bring the plaintiff home to Bulli. 28 The first defendant gave evidence that after the death of his wife the deceased told her that (apart from the cooking of boiled vegetables by the plaintiff, which the deceased was not able to eat) he did all the washing, ironing, cooking and cleaning, and that the plaintiff did not assist him in any way, especially that she did not assist him in his vegetable garden, in which he took pride. Apparently the deceased, according to the first defendant, complained that if plaintiff did any household shopping it was only with money provided to her for that purpose by the deceased. Complaints by the deceased concerning the consequences of the plaintiff’s alleged drinking were also set forth in the evidence of the first defendant. 29 Evidence was given by the first defendant concerning the condition of the bedroom of the deceased in his residence in the latter months of 1993, and assertions by the first defendant concerning what the first defendant regarded as the untidy and insanitary condition of that bedroom. The first defendant gave evidence concerning an apparently forceful entry by herself and her husband into the residence of the deceased, in the company of police, against the will of the plaintiff. 30 Complaints were made by the defendants against the plaintiff for the alleged infrequency of her visits to the deceased during his numerous periods in hospital in the latter years of his life, especially in 1993 and 1994. 31 There was an incident in the early hours of the morning of Monday, 8 November 1993, when the deceased, having obtained the services of a neighbour, one Mick Duff, to drive him to the residence of the defendants, there made statements virtually alleging that the plaintiff had stolen all his money and jewels. 32 The evidence given by the plaintiff concerning the period of her residence with her father after the death of her mother was totally at odds with the foregoing evidence of the defendants concerning their own personal observations and concerning various allegations attributed by them to the deceased. According to the plaintiff, she had a close and loving relationship with both her parents. After the death of her mother she looked after her father, kept the house clean and tidy, attended to her father’s needs, did all the housework and cooking, visited her father frequently and regularly during his numerous periods in hospital. The plaintiff totally denied the allegations concerning her drinking habits. 33 It will be appreciated that the deceased is no longer available to give his version of what happened during the latter years of his life. However, evidence of an independent nature was available from Dr Luciano Antony Diana, who had been the medical attendant of the deceased from August 1985 until his death on 28 August 1994. Dr Diana also intermittently acted as medical attendant upon the plaintiff. He came to know the deceased and the plaintiff purely in a professional capacity. Dr Diana was also a witness to the will of the deceased. 34 On account of the many house calls which he made to the residence at 11 Waterloo Street, Bulli, Dr Diana came to know the deceased and the plaintiff very well in a domestic setting. In his affidavit of 28 March 1996 Dr Diana set forth the physical problems from which the deceased was suffering during the nine years whilst Dr Diana attended upon him. Those physical problems were mainly osteoarthritis of the hip and the lumbosacral spine, prostatomegaly peripheral vascular disease and a number of episodes of deep venous thrombosis. Dr Diana said that because of these conditions the deceased required multiple hospitalisation and, when he was no longer physically able to care for himself, was finally admitted to the Marco Polo Nursing Home at Unanderra, 35 Dr Diana said that during those illnesses of the deceased he liaised, in the main, with the first defendant. Whenever the plaintiff was present during his house calls she was, according to the doctor, usually heavily under the influence of alcohol. He recorded his observation that the plaintiff was not doing anything to help the deceased around the house. In response to a request by him of the community nurse, he was informed that the plaintiff was “not helping her father with anything around the house. He manages to cook for himself. His niece [presumably, the first defendant] gives him his medication each day”. 36 Although in his affidavit Dr Diana said that during house calls he encountered numerous instances when the plaintiff was verbally aggressive and insulting to her father, and that she was usually inebriated, under cross-examination the doctor said that quite a few times he observed what he described as “some verbal friction” between the plaintiff and the deceased, and he explained that phrase as meaning that the plaintiff “sometimes spoke roughly” to her father. 37 Dr Diana was present when the deceased executed his last will on 12 November 1993. That will was executed at Dr Diana’s surgery as part of a consultation. Not only was Dr Diana one of the witnesses to the will but he also translated the will, which was written in English, into Italian for the benefit of the deceased, and certified that fact in the document itself (“he being able to understand the Italian language but having an imperfect knowledge of the English language after I the witness Luciano Antony Diana who understands both the Italian and English languages had read the will over to the Testator in English and then had truly translated it into Italian language to the Testator which reading and translation were done in our presence when the Testator stated to me his understanding and approval of the will…”). Also present on the occasion when the will was executed were Mr E. C. Curtis, solicitor (who was the other witness to the execution of the will), and the first defendant. 38 Dr Diana in his affidavit expressed the view that the deceased was perfectly clear of mind and was fully oriented in time, place and person, and that he clearly understood the will. In this regard, it will be appreciated that there has been no challenge to the validity of the will, or to the testamentary capacity of the deceased at the time of the execution of the will. 39 I have already observed that there was a total divergence between the evidence of the defendants on the one hand and the evidence of the plaintiff on the other concerning the relationship between the plaintiff and the deceased, and concerning the manner in which the plaintiff cared for the deceased during the period until he went into the nursing home. The cross-examination of the second defendant, Domenico Zanatta, revealed a considerable number of inconsistencies between that witness’s oral evidence and his affidavit evidence. For example, the assertions in his affidavit evidence concerning his observations during his visits to the Bulli residence did not substantiate his affidavit evidence, in that he agreed that (despite his earlier assertion that it “smelt strongly of urine”) there was no specific smell of urine in the house, and that he did not see a urinal bottle (let alone an unemptied such bottle). His assertion as to the condition of the house (that it was “in a filthy state”) was reduced, under cross-examination, to a statement that the house “was not as tidy” as it had been years before. 40 Even his evidence about collecting the plaintiff from Sydney and bringing her back to Bulli in 1982 or 1983 was inconsistent with what he had said in his affidavit. Mr Zanatta in his affidavit of 28 March 1996 said that the plaintiff was living in Kings Cross, where he collected her. That is a location of a far less respectable reputation than the innocuous residential suburb of Sans Souci where, in fact, the plaintiff had been living. Whilst in his affidavit the request was said to emanate from the plaintiff’s mother, it emerged from Mr Zanatta’s cross-examination that it was the deceased who directed Mr Zanatta to Sans Souci, and even accompanied him there on the trip. Mr Zanatta’s acknowledged familiarity with Sydney was such that he could not have genuinely mistaken Sans Souci for Kings Cross. 41 The assertions of the first defendant Nadia Zanatta, were also considerably qualified under cross-examination. For example, the assertion that the plaintiff had left home just before her twenty-first birthday and had not returned home for ten years, was reduced to an attribution by that witness to the deceased that the plaintiff had left home just before her twenty-first birthday and that for a period of four years the deceased and his wife did not know where she was. The oral evidence of the first defendant disclosed that she had never spent much time with the deceased in his own home, and that most of the contact which she had had with her uncle had been away from his residence. Her evidence disclosed a very considerable degree of animus against the plaintiff. She was also evasive, and far from frank, in evidence concerning her own financial and material circumstances. 42 Under cross-examination the first defendant agreed that the incident of 8 November 1993 was the only instance of any fight or conflict between the plaintiff and the deceased which was referred to in her affidavit. She also agreed that until 12 November 1993, when he was admitted to hospital, the deceased never expressed any wish to leave his home. Further, and significantly, the first defendant agreed that at no time did the deceased ever express a wish to have the plaintiff removed from the Bulli residence. 43 By the same token, of course, it will be appreciated that the evidence of the plaintiff herself on such matters as her drinking habits and her standards and competence in domestic management, must be approached with a considerable degree of caution. It is quite clear from the evidence of Dr Diana ---- which should be accepted as impartial and disinterested evidence concerning these matters --- that the plaintiff was frequently inebriated. Indeed, Dr Diana throughout the period whilst he was the medical attendant to the plaintiff, treated and counselled her for alcohol abuse. According to Dr Diana, the plaintiff, at the insistence of the deceased, was admitted to Roma House, a detoxification unit at Wollongong Hospital, in the early 1990s. 44 Dr Diana also said that, on account of her condition, he regarded the plaintiff as not being in a suitable state to measure out the exact quantity of dosages of medication for the deceased. It was for that reason that the first defendant and the community nurse were required to give the deceased his medication. 45 It would appear that until the incident in early November 1993, when the deceased virtually accused the plaintiff of having stolen his jewels and his gold, the deceased (despite the observations of Dr Diana as to the plaintiff’s attitude towards her father) was satisfied to have the plaintiff living in the Bulli house and (whatever might have been her shortcomings as a domestic manager) to have her looking after him. It would appear that the incident in the early hours of 8 November 1993 was the cause of the deceased making his will of 12 November 1993. I have already recorded that the earlier will of the deceased, being that of 6 October 1989 (which appears to have remained in force until revoked by the will of 12 November 1993) left the entirety of the estate of the deceased to the plaintiff. After he was admitted to the Bulli Hospital on 12 November 1993 (immediately after making his last will) the deceased expressed his specific agreement to the plaintiff continuing to reside in the family home. 46 All the complaints which the deceased made against the plaintiff appear to have been made in a four day period, from 8 November to 12 November 1993 (at which time the deceased was aged eighty-five years and was in ill health). No such complaints had previously been made, and no such complaints were made thereafter. Despite the assertion of mistreatment made by the deceased in his will, no particulars of such alleged mistreatment were ever given by the deceased either to his solicitor or to his doctor or to either of the defendants or their children. Even after the alleged incident of 8 November 1993, the deceased recognised that he had an obligation to make some provision for the plaintiff in his will, by his gift to her of the sum of $20,000. 47 It has already been observed that the plaintiff is the only eligible person in relation to the deceased. She was his only surviving child. Not only was she dependent upon the deceased for accommodation for most of her life, and, especially, for the last ten years of the deceased’s life, but the plaintiff lived with the deceased for a very long period without any domestic disharmony. 48 The various greeting cards and letters sent by the plaintiff to the deceased and to her mother (and also greeting cards sent to her by her parents) support her assertion that, whatever might have been their attitude towards her lifestyle, the relationship of the plaintiff with her parents was a close and affectionate one. 49 The drinking habits of the plaintiff (which, although denied by her, were substantiated by the evidence of Dr Diana) enhance rather than diminish the present claim of the plaintiff. 50 In my conclusion the matters relied upon by the defendant as conduct disentitling the plaintiff from the benefit of further provision from the testamentary bounty of the deceased (those matters consisting essentially of the events in the second week of November 1993 --- some nine months before the death of the deceased) are not such as should deprive the plaintiff from an order for provision for her maintenance. 51 There was no suggestion made by the defendants that the plaintiff had given inaccurate or incomplete evidence concerning her state of health or concerning her ability to obtain remunerative employment. 52 The present essential need of the plaintiff is for security of accommodation. That she does not presently have. Not only has she established a need in that regard, which cannot be fulfilled through her own efforts, but also she has established an entitlement to look to the estate of her father, in respect to whom she is the only eligible person, for such security of accommodation. 53 In approaching that claim of the plaintiff the Court must consider any competing claims upon the bounty of the deceased. The only such competing claims are those of the beneficiaries named in his will, being the two defendants and their three children. Those five persons are the designated objects of the testamentary beneficence of the deceased. 54 Accordingly, it is necessary to consider whether the financial and material circumstances of each of those beneficiaries are such as would have the effect of reducing, or even extinguishing, any order for provision, an entitlement to which the plaintiff might otherwise have established. 55 There is no obligation upon beneficiaries, who are designated as such by a testator, to place before the Court any evidence concerning their financial and material circumstances. If they do not, then the Court is entitled to disregard the competing claims of those beneficiaries, so that any order for provision an entitlement to which a plaintiff might otherwise have established will not be reduced, or even extinguished, as a result of such competing claims. If, however, the beneficiaries choose to assert that, on account of their competing claims, any entitlement of the plaintiff should be reduced, or even extinguished, then it is incumbent upon those beneficiaries that their evidence concerning their own financial and material circumstances should be as full and as frank as possible. 56 I have already referred to the fact that at least the first defendant was evasive and far from forthcoming in her evidence concerning her financial and material circumstances. 57 It will be appreciated that, apart from the house property, there will be no other assets available for distribution among the five beneficiaries. The house property has a present value of about $190,000. After allowance is made for the expenses associated with the sale of that property, and for the payment of the legal costs of the defendants out of such proceeds of sale, it is probable that each beneficiary named in the will would receive no more than $30,000. 58 The second defendant is a self-employed builder, having been involved in the building trade since 1961. He conducts that business through the vehicle of a company, of which the two defendants are the directors and the first defendant is the secretary. 59 Until recent times the defendants owned two properties, apart from their residence. Both those properties (one at Albion Park, the other at Fairy Meadow) have recently been sold, realising a total amount of $210,000. The defendants reside in a house property at Woonona. No evidence was given of the present value of that property. However, in her affidavit of 28 March 1996 the first defendant said that that property was subject to a mortgage of about $54,000 to Westpac Banking Corporation. 60 Affidavit evidence was put on by each of the three adult children of the defendants, who are the three other beneficiaries named in the will of the deceased. The eldest child, Davide Alfredo Zanatta, was born on 12 November 1969 (and is presently twenty-nine years of age). He is married, with one child (presently aged three). Davide is employed as an operations manager in a freight business at Wollongong, by which he has been employed for more than six years. He and his wife (who is not in regular employment, but does some casual work), own their matrimonial home at Balgownie (valued at about $157,000). They have savings of about $6,000, a 1986 Nissan motor vehicle (to which a value of about $6,000 was ascribed), together with furniture and personal effects. Their liabilities consist of a mortgage debt of $149,000 and a loan of $135,000 (the purpose of that loan was not revealed by the evidence). Davide’s net income after tax is about $30,000 a year. 61 Sandra Zanatta (formerly known as Sandra Capogreco) was born on 24 August 1971 and is presently aged twenty-seven. She is a divorced lady, who is not presently receiving any support from her former husband. She has one child, aged seven. Sandra is not in employment, and relies on social welfare payments of about $1,000 a month, supplemented by gifts from her father, to support herself and her daughter. She and her daughter reside in rented accommodation, paying $140 a week. Apart from some furniture and personal effects, her only asset is a 1987 Nissan Skyline motor vehicle, to which she ascribes a value of about $6,000. She has debts of about $8,750, being moneys owed on her motor vehicle and by way of a loan from her family. 62 Jason Zanatta was born on 14 February 1973, and is twenty-six years of age. He is a single man residing at home with his parents. He is employed as a carpenter by his parents’ building business. For the year ended 30 June 1996, he earned a gross income of $23,400. He has $10,000 invested on a fixed deposit, but otherwise has no assets. He has no debts. 63 I do not consider that the competing claims of any of the five beneficiaries are such as would have the effect of reducing, let alone extinguishing, any order for provision an entitlement to which the plaintiff might otherwise have established. (It was conceded by Senior Counsel for the defendant that there was no competing financial need in respect to any of the residuary beneficiaries.) 64 I consider that he plaintiff has established an entitlement to a benefit from the estate of the deceased which will, firstly, enable her to have some degree of security and flexibility in her accommodation, and will also provide for her a fund to meet unexpected contingencies and to improve her extremely frugal lifestyle. The plaintiff acknowledged that, because of the size of the estate, it will be necessary for the house property at Bulli to be sold, in order to meet the costs of the defendant executors, and that, in consequence, she must eventually leave that property. 65 The size of the estate is not sufficient to enable a house to be purchased for the plaintiff (even if the plaintiff had established an entitlement to receiving a residence from the estate). The most that can be done is to assist the plaintiff in meeting the rent of appropriate rental accommodation. The plaintiff placed before the Court material concerning the cost of rental accommodation in the Bulli area, but not any precise information concerning Social Security benefits to which she might be entitled, by way of, for example, rental assistance or housing accommodation. 66 The Court should not disturb the testamentary provisions of the deceased except to the extent necessary to meet the foregoing needs of the plaintiff. 67 In all the circumstances I consider that the plaintiff should receive two-thirds of the residuary estate of her father (which should amount to about $73,000). 68 I make the following orders:

1. I order that, in addition to the benefit given to her by the will of the late Romano Vincetich (“the deceased”), the plaintiff receive two-thirds of the residuary estate of the deceased.

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 may be returned.

**********

Last Modified: 08/04/1999