QUAGLIATO v LAPINSKI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER and HANDLEY JJA 15 October 1997, 15 October 1997 [1997] NSWCA 255 Family Provision Act, 1982 Meagher JA The appellant, Ms Wanda Quagliato, is a granddaughter of the deceased, Mr Joseph Henerts, who died on 12 June 1993 in Poland. She had been brought up by Mr Henerts and his then wife Maria, her grandparents, not by her mother. She had stayed in the household of her grandparents since she was eight months old. They treated her as their child. The mother had no part in her rearing and care. This Court gave her grandparents custody of her in 1979. After taking her education to the Higher School Certificate level, she has done numerous jobs. Her grandmother Maria, with whom she was quite close was admitted, in October 1991, to a nursing home and, in February 1992, had her leg amputated. Six months later she died. Her life is not extravagant but at least capable of a fair degree of comfort. She has enjoyed overseas travel and she has been interstate on several occasions. From the date her grandmother died to the date her grandfather died is a critical period in the present application. Her grandfather, in his will and in statements he made to other people, has suggested that the appellant virtually severed relations with him and provided no service for him, although it is common ground that she lived in her grandfather's house until his death. Her grandfather, after his wife died, took up with another lady who is the executrix of his will and made various gifts of money in her favour, one substantial amount before they went to Poland and another amount when the two of them travelled to Poland, where he died. The account which she gives of her relationship with her grandfather is rather different from his. She denies that there was any serious friction between him and her, though concedes that there was a slight amount of friction. On the other hand she cannot point to any real domestic services which she provided for him. Her financial position is not really over-favourable. She is in receipt of an amount from her work of about $340 a week. She has relatively small amount of savings, which is over $2,000. She has a sewing machine, household furniture and items including a television, video, refrigerator, freezer and washing machine. Even when she spent most of her time in her grandfather's house at Chester Hill, she also had a home unit at Gordon for which she pays a rent of $85 per week, which she has had on lease since June 1995. In view of the fact that there is no contest that the relationship between grandfather and granddaughter was not overly close, it is difficult to see quite what, if any, sum, should be paid to her. On her version - I quote from paral2 of her affidavit of 11 May 1994, speaking of the period after her grandmother's death and speaking of her grandfather - she said, "We did not really come into contact all that much." But, on the other hand, she is to be treated, as Mr Wilson her counsel pointed out, as if she were a child of her grandfather. He had looked after her education maintenance and 2 UNREPORTED JUDGMENTS advancement. His conduct showed that he appreciated that he was so responsible. Her financial position, if not parlous, is certainly not brilliant and it would be difficult to deny what the Master found, namely, that she did have a need. On the other hand the Estate assets from which any order is to be made are extraordinarily small. The principal asset was a house worth $120,000, which has been sold. There is, I understand from what has been said to us, a surplus of $55,000, a surplus from which all costs must be borne as well as any order met. In all the circumstances, despite the order of the Master to the contrary, a discretionary order, that the application should be dismissed, I am inclined to think that she is entitled to some amount, but a very small amount; perhaps a figure of $10,000. In these circumstances I propose the following orders be made: 1. Appeal allowed. 2. Order below set aside. 3. In lieu thereof a legacy be granted to the appellant in the sum of $10,000 not to bear interest if it is paid within twenty-eight days. 4. Costs of the defendant executrix at first instance be paid out of the estate and the costs at first instance and of this appeal of the appellant be paid out of the Estate. The defendant's costs will be on an indemnity basis. Mason P IJ agree. Handley JA I also agree. Mason P The orders of the Court will be as proposed by Mr Justice Meagher. 1. Appeal allowed; 2. Orders below set aside; 3. In lieu thereof, order a legacy be granted to the appellant in the sum of $10,000 with no interest to run if paid within 28 days; 4. Costs of the defendant executrix at first instance to be paid out of the estate and costs of the appellant both at first instance and on appeal be paid out of the Estate. The defendant's costs will be on an indemnity basis. Counsel for the appellant: J R Wilson Solicitors for the appellant: Maurice May & Co Counsel for the respondent: L Ellison Solicitors for the respondent: Chris Nadolski & Assoc