WANG V. D'AMBROSIO [1999] NSWSC 227

1 HIS HONOUR: The late John Newman was murdered on 5 September 1994. He left an estate comprising his home at 15 Woods Avenue Cabramatta, furniture, a motor vehicle, money and securities to the value of about $50,000.00, and superannuation then estimated to be around $180,000.00. By his last will dated 3 January 1992, Mr Newman appointed Sam D'Ambrosio as executor, gave the home and its contents to his mother, $100,000.00 to his brother, $10,000.00 each to three friends, and the residue for a proposed charitable purpose. 2 At the time of his death, Mr Newman's fiancee Lucy Wang resided with him at the Woods Avenue property, and she continued to reside there for some time after his death. On 25 January 1995 Miss Wang commenced proceedings under the Family Provision Act against Mr D'Ambrosio, claiming provision out of the estate. On 13 July 1995, Mr D'Ambrosio commenced proceedings against Miss Wang, claiming possession of the Woods Avenue property. In about October 1995, Miss Wang left the property, and the proceedings are now being pursued with a view to claiming damages or rent from the date of Mr Newman's death. 3 I am dealing now with Miss Wang's claim under the Family Provision Act, and Mr D'Ambrosio's claim for a little over $11,000.00 rent plus about $3,600.00 interest. OUTLINE OF FACTS 4 I will commence by giving an outline of the facts. 5 Mr Newman and Miss Wang met in about March 1993. Mr Newman had been born in 1948, had married in 1972, and had a son in 1973. In 1979, Mr Newman's wife and son were killed in a car crash. He entered New South Wales Parliament as the member for Cabramatta in 1986, and he continued in that role until his death. His will was made in January 1992. 6 Miss Wang was born in China in 1966. In January 1990, she married one Jian Lui in China. In May the same year, she came to Australia to undertake a Bachelor of Arts Degree at Macquarie University. It seems that she returned to China for a short time in March 1993, at which time she agreed to a divorce with Jian Lui. In April 1993, Miss Wang graduated as a Bachelor of Arts. She commenced working for Mr Newman in his electoral office doing contract translation work. From a little after this time, Mr Newman and Miss Wang began going out together, and later in the year Mr Newman proposed taking her on a trip to China. 7 In November 1993, Miss Wang accompanied Mr Newman as his partner and translator on a two-week Parliamentary delegation to China. It is clear that on this trip they shared hotel rooms, and that there was a sexual relationship between them. Mr Newman was introduced to Miss Wang's parents in China. According to Miss Wang she was, on this trip, introduced to people as Mr Newman's wife. 8 Also in November, Miss Wang commenced full-time employment with Oceania English College Belmore, as a secretary. 9 Towards the end of the year, it appears that Mr Newman found out for the first time about Miss Wang's marriage, and was very concerned about this. However, it appears that ultimately he accepted Miss Wang's explanation about the matter. 10 In December 1993 or January 1994, Miss Wang commenced to live with Mr Newman. From about the time she moved in, or perhaps shortly afterwards, they slept together in the main bedroom, and it is clear that there was a sexual relationship between them. 11 Mr Newman's mother, Mrs Neumenko, continued however to come regularly to the house as she had in the past, on about two days a week, to do cleaning and washing. This continued until about February 1994, when she broke her hip; and from that time until about May 1994, she did not come. After May 1994, she resumed coming to the house and doing the cleaning and washing. 12 In January 1994, Miss Wang ceased her employment with Oceania English College, and commenced to work in Mr Newman's electoral office three days a week, for which she was paid $450.00 nett per fortnight. 13 It seems that in April 1994, Miss Wang did obtain a divorce in China from Jian Lui. 14 In May 1994, Mr Newman wrote a letter to the plaintiff's father in China, reading as follows: I write to extend my greetings again to you, your dear wife and family. Xiao Jing and I are getting along very well and learning to understand each other. I hope you are well and that the winter in China was not too cold. Xiao jing and I hope to visit you again in October 1994. Mr. Wang, I am very much in love with your daughter and hope she will stay with me forever. Your daughter still needs to look after her health. I am doing my best to give her Vitamins and ensure that she eats the right food. Xiao jing's health is better now but still needs improvement. Please write and tell her to take greater care of her health. My life is much happier being with your daughter. Until we meet again I express my best wishes to you and your family. 'Xiao Jing' is Miss Wang. 15 On 9 May 1994 Mr Newman asked Miss Wang to marry him, and he gave her and she accepted an engagement ring. Some time after that, there was a proposal for an engagement party; but that was cancelled, apparently due to working commitments of Mr Newman. 16 Between 17 and 30 May 1994, Mr Newman and Miss Wang went together to France to attend a Karate meeting, and, on that occasion, they visited relatives of Mr Newman in Switzerland. 17 In July 1994, Mr Newman and some colleagues, being members of the Stay Safe Committee, went to the United States and the United Kingdom to look into police matters. There is an affectionate letter from him to Miss Wang dated 22 July 1994, sent from Los Angeles, which concludes with the words "I miss you, all my love". 18 In August 1994, there was a meeting of the Cabramatta Branch of the Australian Labor Party chaired by Mr D'Ambrosio. According to Miss Wang, Mr Newman was unhappy about what happened at the meeting, and afterwards said he did not trust Mr D'Ambrosio and that he must change his will. About the same time, according to Miss Wang, the deceased said he would make a new will leaving everything to her. 19 According to a fellow Member of Parliament, Mr Peter Nagle, at a function at Parliament House on a Saturday about 26 August (which appears to have been the 27 August 1994), Mr Newman discussed his wedding plans with him. On the Thursday before the murder, (that would appear to be 1 September) Mr. Newman telephoned Mr Nagle, and discussed plans for the honeymoon. As I have mentioned Mr Newman was murdered on 5 September. 20 In December 1994, Miss Wang was granted permanent resident status by the Australian Government. 21 As I mentioned, the Family Provision Act proceedings were commenced on 23 January 1995. On 31 March 1995, whilst Miss Wang was overseas, Mr D'Ambrosio entered the house and changed the locks. However, Miss Wang retook possession in April 1995. 22 Probate of the estate was granted to Mr D'Ambrosio on 30 May 1995, and on 30 July he commenced the possession proceedings. As I have already mentioned, Miss Wang left the property in about October 1995. 23 In 1996, a book written by Miss Wang was published. According to her evidence, she received something between $20,000.00 and $30,000.00 for this book. In about September 1996, she commenced employment with UHI Winko Pty Ltd, for which employment she was paid $700.00 per week gross. It appears that this employment finished in about mid 1997. 24 At about that time Miss Wang went to Western Australia, and became a shareholder and director of a company Asian Buffet Club Pty Limited, which ran a restaurant at Rockingham. It appears Miss Wang invested $50,000.00 in that enterprise, being a sum she had been awarded by the Victim's Compensation Tribunal. The restaurant closed in 1997 and was sold. According to Miss Wang, her investment was lost. 25 Miss Wang returned to Sydney in January 1998. The inquest into Mr Newman's death took place in February/March 1998. Miss Wang had legal representation at that inquest. Apart from $10,000.00 which she paid, it appears that she was represented on a contingency basis, and there is evidence that, if she is successful in these proceedings there is an amount of $60,000.00 which is claimed from her in respect of legal representation at the inquest. 26 In 1998 Miss Wang was employed by The Asian Pacific Group. This group, among other things, paid her rent and travelling expenses in relation to trips to China and the USA. In March 1999, she enrolled in a computer programming course and a MBA Course at the University of Technology, Sydney. She says she has few assets. 27 Since Mr Newman's death, the estate has received the superannuation payment, which turned out to be around $240,000.00; about $40,000.00 in rent from the estate house, out of which there have been some expenses; tax of $31,500.00 has been paid, storage fees of $7,000.00 have been paid and it appears that legal cost of $184,000.00 have been paid to the defendant's legal advisers. It appears that there are orders against the plaintiff to pay some legal costs of the defendant, amounting to around $8,000.00. According to the defendant's legal representatives, there is something over $33,000.00 still to be paid arising out of this hearing. The plaintiff's legal costs are said to amount to around $60,000.00 on a contingency basis. It is common ground that the house property is worth about $240,000.00. 28 I have been provided with no evidence of the financial circumstances of Mrs Neumenko. There is some evidence of the financial circumstances of Mr Newman's brother, to the following effect. He is in reasonable employment. His principal asset is land at Fairfield worth $100,000.00, in respect of which he has entered into a contract for $130,00.00 to build a house. He expects to meet that by a mortgage of $100,000.00, and with some investments held by his wife. The material about Mr Newman's brother does not indicate that he has any children, although there is reference to a step-daughter. There is no clear statement of his wife's financial position. ISSUES 29 I will now deal with the issues that have been raised in the case. Firstly, there are some issues concerning evidence in the case, and the credibility of witnesses. Secondly, there are questions arising under the possession proceedings. Thirdly, there is the question whether Miss Wang is an eligible person in relation to the Family Provision Act claim. Fourthly, there is the question whether the provision she has had from Mr Newman and his estate is inadequate for her proper maintenance, education and advancement in life. Fifthly, if I am otherwise in favour of a provision being made, what is the amount of the provision which should be made. EVIDENCE AND CREDIBILITY 30 Dealing first with matters concerning evidence and credibility, I will mention first a number of particular witnesses about whom no particular question of credibility was raised. 31 A neighbour Mrs Wilson gave evidence that, in about January 1994, the deceased said that he was going away, and there would be a Chinese student at the house, and she was not to be concerned about that. Mrs Wilson also gave evidence of hearing Mr Newman shout, at some time after the engagement was announced, the words "I am not going to marry you". 32 Friends of Mr Newman, Mr and Mrs Gotovac, gave some evidence. Mr Gotovac's evidence included evidence about the domestic work done by Mrs Neumenko, and complaints were made about Miss Wang. He said he was introduced to Miss Wang in February 1994 as Mr Newman's receptionist, and he said that Mr Newman never told him he intended to marry Miss Wang. 33 A solicitor, Miss Green, gave evidence that in late 1993 Mr Newman asked about the legal position if Miss Wang moved in; and he was apparently reassured by being told it would be two years before there was a problem, unless she had a child. 34 A friend, Mr Huynh said that, some time after the return from the trip to China, Mr Newman had expressed concern to him that Miss Wang had "hid" her marriage from him. 35 On behalf of the plaintiff, a fellow MP Mr Nagle gave evidence about Miss Wang's help to Mr Newman in political gatherings. He gave evidence of very close contact with Mr Newman over the months of 1994, and that all remarks that Mr Newman made about Miss Wang were remarks of love, affection and kindness. He said, prior to his association with Miss Wang, Mr Newman had been quick to temper and that subsequently he was calmer and happier. 36 Another MP, Christopher Hartley, gave evidence that Mr. Newman on 31st August 1994 conveyed in no uncertain terms that he was getting married soon. 37 As I have said, there was little controversy about the evidence of those witnesses, and I see no reason why I should not accept all that evidence. 38 Mrs Neumenko gave evidence that, in about December 1993, Mr. Newman spoke of Miss Wang coming to the house, in terms that she was a guest and there was a spare room downstairs; and she also gave evidence of some talk by Miss Wang about problems with accommodation. She says that, after Miss Wang moved in, she did the same domestic duties as before, and indeed she did more because she did work for Miss Wang as well. She gave evidence that there were many arguments, in fact that there were arguments between Mr Newman and Miss Wang on most occasions when she went to the house. She gave evidence that after the engagement, Mr Newman said to her "I have made a mistake with Lucy, I cannot marry her"; and also words to the effect "The quicker I get that woman out of the house the better". On another occasion he said to Miss Wang "No way am I going to marry you". In my opinion, that evidence does support the view that there were arguments, but I cannot regard it as a balanced account of Mrs Neumenko's observations of the relationship. In my opinion, evidence that I accept, including the objective evidence of letters and the evidence of persons like Mr Nagle, make it clear that on the whole the relationship was a close and loving relationship. It seems to me that the evidence given by Mrs Neumenko has been given selectively, and with the intention of presenting as unsatisfactory a picture as possible of the relationship. 39 Mr D'Ambrosio gave evidence that on each occasion before Mr Newman went away, including July 1994, he reminded him about the will and asked him to look after his mother. He gave evidence of statements by Mr Newman, in about December 1993 and early 1994, that Miss Wang only moved into his house for some reason of appearance. He gave evidence that in August 1994, Mr Newman said words to the effect that Miss Wang was going overseas and he would find a unit for her, and when she came back she was going to find herself there. There was a challenge made to Mr D'Ambrosio's loyalty to the deceased, in terms of association with the deceased's political rivals. In my opinion that challenge to Mr D'Ambrosio did fail completely. However, in my opinion, Mr D'Ambrosio in the manner and content of his evidence showed very considerable animus against the plaintiff: for example, his evidence attempting to throw doubt on the continuance of the engagement, and his ultimate reluctant acceptance of insulting words about the plaintiff at the time possession was recovered of the property. I have to say that I considered his evidence did not give anything like a balanced picture of the relationship, and I am not satisfied that the words he claimed to have had said to him in August 1994 were said in the way, or having the implication that he has suggested. 40 As regards Miss Wang, it was submitted by Mr Dupree that in her statement to the police and in her book her account was different from that given in the witness box, and did not support the existence of the kind of relationship which would make her an eligible person. He took me in some detail through the pages of the book, but I was unable to detect any inconsistency between what was said in the book and what she said in evidence. He did submit that Miss Wang made a claim that she was already Mr Newman's de facto wife at the time of the visit to China; and he referred me to a question where it was put to her that she was not Mr Newman's wife at that time, to which she replied "I regarded I was". Again, I do not regard that as inconsistent with what is now claimed. I accept her evidence that, on that occasion, she was introduced as Mr Newman's wife, although I also accept that it could not be said that a domestic relationship of husband and wife had been established at that stage. I do not think that the question and answer referred to does indicate anything substantially different being claimed by Miss Wang. 41 Mr Dupree also submitted that Miss Wang's disclosure of her business activities and financial affairs, since Mr Newman's death, was unsatisfactory. He submitted there was no forthright explanation concerning the remuneration for her book. He submitted that there was no adequate account given of the various companies she had been involved in. In particular, he pointed out that Asian Buffet Club was not in liquidation but was continuing, with the plaintiff still a director and holding thirty-five thousand shares. He referred to other companies such as Co-Cyber Pty Ltd, in which Miss Wang has seventy-five or one hundred shares, and UHI Winko, in which she appeared to be the sole director and the centre of the corporate structure. He pointed to the business name Ausqueen, and to what he submitted was her unsatisfactory evidence that it just helped Mr Newman for taxation purposes. 42 In my opinion, the evidence given by Miss Wang about her financial activities is not as full and precise as perhaps it should have been. However, I am satisfied that her evidence to the effect that these various activities have not left her with any substantial assets should be accepted. These activities have provided her with a living over the last few years. She has been assisted in this by the payments she received for the book, and also by the money from the Victim's Compensation Tribunal. I accept in substance that has been lost, and that the company, Asian Buffet Club having sold the restaurant and apparently paid out creditors under a deed of company arrangement, is not any longer a company of any substance. POSSESSION PROCEEDINGS 43 I turn now to consider the possession proceedings. 44 Mr Dupree submitted that any licence Miss Wang may have had to live in the property was revoked by the death of Mr Newman and he referred me to Public Trustee v. Belotti (1986) 4 BPR 9196 and Richardson v Greentree, unreported 1st December 1997, Einstein, J. He submitted that the evidence did not show any permission to Miss Wang to stay in the premises, and that accordingly she was liable for damages or rent for the whole of the period between the death of Mr Newman and her leaving the premises. 45 Mr Wilson referred to an affidavit sworn by Mr D'Ambrosio on 31 March 1995, the day on which he changed the locks and excluded Miss Wang from the premises. In that affidavit Mr D'Ambrosio swore: "I have, in my capacity as executor to Mr Newman's estate, currently allowed the plaintiff to reside at Mr Newman's home until the plaintiff's summons is determined by the court". 46 Mr Wilson submitted that that made it clear that, at least until action was taken to exclude Miss Wang, she did have permission to stay in the house, and should not be treated as a trespasser or liable for rent. 47 In my opinion, it is clear that, subject to the Family Provision Act claim, Miss Wang did become a trespasser when she went back into the premises and, subject to the Family Provision Act claim, she would be liable to damages quantified by reference to a reasonable rent from then until the time she left. I am not satisfied, having regard to what was sworn by Mr D'Ambrosio, that she is liable for rent for any earlier period. ELIGIBLE PERSON 48 The next question is whether Miss Wang is an eligible person within the meaning of the Family Provision Act. That expression is defined by s.6 of the Act in the following terms:

53 He submitted, because there was no use of the word "de facto" in the Family Provision Act but only use of the word "wife", a higher test was required to bring a person within the definition in the Family Provision Act. He submitted that, in particular, there had to be a mutual mental element, an acceptance by both that Miss Wang was living with Mr Newman as his wife. He submitted that it was appropriate that a higher test be imposed, because of the problems of opposing a claim brought against a deceased estate. 54 Mr Dupree submitted that in any event the test laid down under the De Facto Relationships Act in cases such as D v. McA (1986) 11 FLR 214 had not been satisfied. There was no combination of financial resources, or holding out to the community of the status of husband and wife, only the status of an engaged couple. The relationship was only about eight months, and the evidence about arguments and various statements by the deceased indicated that it did not have a character of stability and permanence. He pointed to material from Miss Wang's book suggesting that the relationship developed gradually to becoming ultimately one where she was a fiancee, which was not the same as a de facto partner. He pointed to a failure to call witnesses who could have supported the plaintiff's claim, such as Mr Gibson and Mr Hazard. He submitted that there was no evidence that, during 1994, Miss Wang was ever introduced as Mr Newman's wife. 55 I do not accept that any different test applies under the relevant definition in the Family Provision Act than that which applies under the similar definition in the De Facto Relationships Act. 56 In my opinion, the fact that the public presentation of the relationship was that of an engaged couple is by no means inconsistent with it being true that Miss Wang was, at the time of Mr Newman's death, living with him as his wife on a bona fide domestic basis. In my opinion, the factors referred to by Mr Wilson do strongly support the view that that indeed was the situation. They had been living together substantially as if they were husband and wife from January 1994 until 5 September 1994. There was very substantial mutual support, there was very substantial common use of property. It seems to me that the fact that they intended to marry a little time in the future confirms that there was a degree of mutual commitment, which supports rather than conflicts with the existence of the required relationship. I am satisfied that they were committed to marry each other, and that this commitment was very genuine on both sides. I am satisfied that the requirements of paragraph a(ii) of the definition of eligible person are satisfied. INADEQUATE PROVISION 57 The next question is whether I am satisfied, in terms of s.9 of the Family Provision Act, that the provision made for Miss Wang is inadequate for her proper maintenance, education and advancement in life. 58 Mr Wilson referred me to Singer v. Berghouse (1994) 181 CLR 201, and submitted that I ought have regard to Miss Wang's financial position, the size of the estate, the totality of the relationship between Miss Wang and the deceased, and other persons who have legitimate claims upon the deceased's bounty. He submitted that I should not be satisfied there were any persons, apart from the plaintiff, who had such a legitimate claim. He referred me to Re Fulop Deceased (1987) 8 NSW LR 679 at 681. 59 He submitted that Miss Wang was left without adequate provision because she had financial needs in the form of requiring a residence, paying University fees, requiring a motor vehicle, paying debts, and having a fund to cover day to day expenses and vicissitudes. Further, the nature, duration and intensity of the relationship was such that the deceased ought to have made provision; the plaintiff's contribution to the welfare of the deceased had been substantial; the estate was of sufficient size; and that the deceased could comfortably provide for the plaintiff. 60 Mr Dupree submitted that the onus was on the plaintiff to bring satisfactory evidence to the court to show her financial circumstances and thus to show her need. He submitted that I could conclude that the plaintiff was astute, entrepreneurial and skilful, and had been involved in many businesses. The evidence she had produced about those businesses was insufficient for the court to come to a satisfactory conclusion about her needs. I have already briefly outlined some of those submissions in dealing with the question of her ability. He submitted that I could infer that her resignation from the Asian Pacific Group and application to undertake further study was calculated as presenting a picture of need. 61 He submitted that debts the plaintiff alleged to have to friends had not been proved. He submitted that the plaintiff had not shown there was any necessity to incur legal costs in relation to the inquest. There had been no accusation brought against her by the police or any official person, and it was not shown to be at all necessary for her to have incurred those costs. He referred me to evidence where the plaintiff said that she had some suspicion of the police, and talked about being under police supervision; and he submitted that this did not suggest any reasonable basis for incurring the costs. He also pointed to her success in providing for herself over the last few years, the $50,000.00 she received from the Victim's Compensation Tribunal, the $24,000.00 to $30,000.00 she received from the book. He submitted that there was evidence of proceedings contemplated against the State of New South Wales in respect of the death of Mr Newman, and that too he submitted was a matter that should have been disclosed and explained in order to have a full appreciation of the plaintiff's financial position. 62 In my opinion, the plaintiff Miss Wang did have a legitimate claim on the bounty of Mr Newman, by reason of being his de facto spouse, by reason of the commitment to marry that they had both undertaken and continued with, and by reason of eight months of very significant mutual support. Upon Mr Newman's death she was left with no place to live. As submitted by Mr Dupree, it appears that any licence she had to remain in the house was revoked, so she was liable to be immediately evicted. She had no substantial assets of her own. I think it is fair to say that she did have substantial skills and resourcefulness to make her own way in the world, but I do not consider that that means that she did not need provision for proper maintenance education and advancement in life. There is some force in Mr Dupree's submissions about the unsatisfactory nature of the material I have about the financial means of Miss Wang, and her activities between the date of death and the present, but as I have said, on the whole I am satisfied that the picture she has given is substantially accurate and that, at this time, she still has no significant assets. 63 Looking at the competing claims, there is no doubt that Mr Newman's mother had a very close relationship with him, and provided considerable support and assistance to him, both before and after the relationship with Miss Wang commenced. From the point of view of the relationship, her claim would be a strong one. However, I have absolutely no evidence whatsoever as to her financial situation, and that makes it extremely difficult for me to make an assessment of what the strength of her claim is. 64 So far as Mr Newman's brother is concerned, there is some evidence as to his financial situation, which I have outlined; although no evidence as to the nature of the relationship with the deceased, or as to any mutual assistance or support they may or may not have given each other over the years. In those circumstances, again, it is extremely difficult to come to a satisfactory view as to the strength of the claim. 65 I have outlined the deceased's assets at the date of death. The effect of the will was that the house, then considered to be worth $180,000.00, and furniture then considered to be worth $20,000.00 was given to Mr Newman's mother. Out of the remaining assets of around $300,000.00, $100,000.00 was given to the brother, $30,000.00 to friends, and the remaining approximately $170,000.00 was to be the subject of the charitable gift to which I have referred. 66 Although this is not the question I have to decide (I have to look at the question of adequacy at the present, not at the time of death), as one step towards doing that, I think it is pertinent to consider whether there was adequate provision considered at the date of death; and in my opinion, it is plain that there was not. In my opinion, adequate provision at the date of death would have required something like one year's accommodation and something like one-third of the estate. 67 As I mentioned, the situation has changed substantially since the date of death. The house is now said to be worth about $240,000.00, and superannuation turned out to be about $240,000.00. $40,000.00 rent has been received but, as I have already mentioned, the defendants have paid legal costs, not just of the Family Provision Act proceedings but also of the possession proceedings and the probate application, totalling $184,000.00; some $7,000.00 has been paid in storage fees (I am not sure whether that is included in the $184,000.00 or not); and $1,700.00 was paid to a document examiner, to give advice as to whether the two letters I have referred to were genuine; and I have referred to the additional legal costs that are expected still to be due. 68 So far as the plaintiff's position is concerned, she received $50,000.00 from the Victim's Compensation Tribunal, but apparently has substantially lost that in the business venture in Western Australia. 69 She has what appears to be a potential liability of $60,000 for legal costs for the inquest. In relation to the incurring of those costs, the plaintiff gave evidence that she considered she could be a suspect. She gave evidence that she was questioned by the police, that she asked the police whether she was a suspect, and that the police replied to the effect they would just have to complete their investigations; and she gave evidence to the effect that the statements presented at the inquest were not provided to any of the participants at the inquest until each witness was called. There is in evidence a piece of transcript from the inquest in which counsel representing Mr Newman's family sought to cross examine Miss Wang at the inquest in order to put to her motives that she may have had concerning the murder of Mr Newman. In those circumstances, although it is patently clear now that she never should have been a suspect in anyone's mind, I cannot say it was unreasonable for her to have wanted legal representation at the inquest, and to have incurred costs. I can make no comment on the amount of the costs. 70 Looking at what is now in the estate, Mr D'Ambrosio says it amounts to $402,000.00 which includes $20,000.00 of legacies which have apparently been paid, $8,000.00 in costs orders owing by Miss Wang to the estate, and $20,000.00 of furniture, the realisable value of which I am not in a position to find. From this apparently would come $93,000.00 of costs, if I make a finding in favour of the plaintiff and order that the costs be paid out of the estate. This would leave something like $250,000.00 nett, if all the costs I have referred to are allowed as costs out of the estate. 71 Looking at the plaintiff's current needs, it seems to me that the need for accommodation for a year or so after the death, which now translates into a defence to the claim for rent against her, should still be provided for. She has, it seems, a liability for $60,000.00 legal costs, although I cannot comment on whether it would be enforceable in full against her. She needs money for university fees and vicissitudes. In my opinion, in the present circumstances, the provision for her was inadequate. WHAT ORDER SHOULD BE MADE? 72 It is plain that the intended gift to charities cannot now be met. There is no money which would possibly remain as a residuary gift. 73 As I understand the order of application of assets, if there was only $250,000.00 in the estate, all the pecuniary legacies would abate since they abate prior to, as I understand it, the specific gift of the real estate. Assuming I make an award to the plaintiff which would come off the $250,000.00, plainly that would eliminate all the pecuniary legacies and leave any balance to be paid to Mr Newman's mother as a person given a specific gift of the real estate and furniture. I might mention that, quite early in the proceedings, the executor approached the Court for authority to pay the $10,000.00 legacies and, as I understand it, that authority was granted in circumstances where the result of the case appears to be that those legacies are completely wiped out. I am not sure where that leaves the question of entitlement to those legacies. 74 In any event, I have to arrive at what I think is the order which ought, having regard to the circumstances at this time, be made for the maintenance, education and advancement in life of the plaintiff. Having regard to all the circumstances I have referred to and, in particular, the lack of evidence concerning the strength of the competing claims which I have referred to, in my opinion an appropriate order is a sum of $150,000.00. CONCLUSION 75 On the question of costs, Mr Dupree has submitted I should order costs on the usual trustee or indemnity basis in favour of the executor. 76 In my opinion it is not appropriate to do that in this case, for two reasons. One reason is what appears to be the disproportion of the costs incurred to what was involved in the case, both in terms of the size of the estate and the issues being fought. The other is that it seems to me that the case has been conducted with some animus on the part of the executor as fairly extreme adversary proceedings. In those circumstances, while I am not prepared to deprive the executor of costs, I think the order for costs should be on a party and party basis, so there has to be some justification given for the amount of costs that have been incurred. 77 Particular orders are sought by the plaintiff in relation to the immediate payment of some money out of a particular fund. There also may be a question of particular orders as to how the order is to be borne by the estate. For the purpose of further submissions on those matters I will refrain from making the final order today. 78 I stand the matter over for final orders to 9.30 Friday 26th March 1999.

I certify this and the preceding 21 pages to be a true copy of the reasons for judgment of Justice D.H. Hodgson Date 22nd March 1999 Associate

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