Szlazko v Travini [2004] NSWSC 610

New South Wales Supreme Court

CITATION : Szlazko v Travini [2004] NSWSC 610 HEARING DATE(S) : 29/06/04 JUDGMENT DATE : 7 July 2004 JURISDICTION: Equity Division JUDGMENT OF : Young CJ in Eq DECISION : Orders made for increased provision for the plaintiff.

CATCHWORDS : SUCCESSION [335]- Family Provision- Relatively small estate- Duty of defendant- De facto widow- Testator's paramount duty. LEGISLATION CITED : Family Provision Act 1982 Caldwell v Ang (Young J, 11.4.1991) Court v Hunt (Young J, 19.9.1987) Crisp v Burns Philp Trustee Co Ltd (Holland J, 18.12.1979) Dijkhuijs v Barclay (1988) 12 Fam LR 367 Golosky v Golosky (C/A, 5.10.1993) Jackson v Riley (Cohen J, 24.2.1989) CASES CITED : Moore v Moore (C/A, 16.5.1984) Propert v O'Connor (Master Macready, 29.7.1994) Re Strickland's Will Trusts [1936] 3 All ER 1027 Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482 Singer v Berghouse (1994) 181 CLR 201 Vasiljev v Public Trustee [1974] 2 NSWLR 497 Warren v McKnight (1996) 40 NSWLR 390 PARTIES : Brigitte Erika Szlazko (P) Bruno Travini (D) FILE NUMBER(S) : SC 2946/02 COUNSEL : G K Burton (P) J Dupree (D) SOLICITORS : Richard Harvey & Associates (P) L C Muriniti & Associates (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 7 July 2004

2946/02 – SZLAZKO v TRAVINI JUDGMENT 1 HIS HONOUR: The plaintiff seeks an order for provision under the Family Provision Act 1982. 2 The plaintiff claims to be the de facto widow of the late Andrea Antoni who died on 1 January 2001 aged 74. The estate was sworn at $690,000. It currently appears that, after legal costs, it will consist of a house at 156 Hillcrest Avenue Bankstown worth about $400,000, some shares worth $65,000 and cash in the amount of $135,000. 3 The plaintiff is currently aged 66 years. The deceased by his will made the following provision for the plaintiff: " FIRSTLY to allow BRIGITTE SZLAZKO during her life to reside in the property at 156 Hillcrest Avenue, Bankstown on the condition that she be responsible for the maintenance and upkeep of the said property including the payment of insurance, Council and water rates and all other outgoings AND FURTHER on the condition that she not re-marry or live in a de facto relationship on the premises or otherwise or enter into a permanent relationship with another man whether residing on the premises or not AND FURTHER on the condition that she not encumber by way of mortgage, caveat or in any other way the said property or lease or sub-lease the property in any way or leave the premises vacant and reside in other premises (other than for the purpose of going on holidays)." 4 The will then continued: SECONDLY I GIVE DEVISE AND BEQUEATH the balance of my estate including the property at 156 Hillcrest Avenue, Bankstown after the death of BRIGITTE SZLAZKO both real and personal of whatsoever nature and wheresoever situate unto my Trustee UPON TRUST … to be divide as follows: a) I GIVE DEVISE AND BEQUEATH TO BRIGITTE SZLAZKO a cash gift of $50,000. b) The balance of the estate shall go equally to my sisters GILDA LEGOVCIC … and MARIA PAVCOVICH … but should either of my sisters predecease me leaving children then said children shall on attaining their majority take equally the share which their parent would otherwise have taken." 5 The plaintiff says that that was not sufficient provision for her and as I have said, seeks a further order under the Act. At the hearing before me on 29 June 2004, Mr G K Burton of counsel appeared for the plaintiff and Mr J Dupree of counsel appeared for the defendant. 6 Before going further I should note the status of the defendant. The plaintiff obtained probate of the will on 10 July 2001. As she wished to make a claim against the estate she sought directions as to who should be added as defendant. The residuary beneficiaries both live in Croatia. On 17 April 2003 by consent a Registrar made the following order: "By consent the Court orders that: 1. Mr Bruno Travini of 70 Roseby Street, Drummoyne, NSW, ('the defendant') be joined as the Defendant in these proceedings. 2. The Defendant's costs of and incidental to the proceedings herein are to be paid from the estate of the late Andrea Antoni on a trustee basis. 3. Note the intention of the parties that order 2 is irrevocable."