Gazzo v Crimi [2008] NSWSC 217

New South Wales Supreme Court

CITATION : Gazzo v Crimi [2008] NSWSC 217

HEARING DATE(S) : 5, 6 March 2008

JUDGMENT DATE : 17 March 2008

JUDGMENT OF : Gzell J

DECISION : Legacy of $150,000 out of notional estate.

CATCHWORDS : SUCCESSION - Family Provision and Maintenance - Failure of testatrix to make provision - Elderly daughter left nothing by mother - Executrix living in house, the only asset in the estate - Executrix's flats designated as notional estate - Executrix settled another claim by a sibling by legacy out of notional estate - Applicant's house subject to mortgage as a result of guarantee of son's business being called up - Whether a legacy sufficient to discharge mortgage is proper provision

LEGISLATION CITED : Family Provision Act 1982

CATEGORY : Principal judgment

CASES CITED : Singer v Berghouse (No 2) (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191

PARTIES : Agata Gazzo - Plaintiff Venera Elena Crimi - Defendant

FILE NUMBER(S) : SC 4324/06

COUNSEL : Mr A Hill - For Plaintiff Ms A Healey - For Defendant

SOLICITORS : Villari & Co. Lawyers - For Plaintiff Egisto Solicitors - For Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

MONDAY 17 MARCH 2008

4324/06 AGATA GAZZO v VENERA ELENA CRIMI JUDGMENT 1 Agata Gazzo seeks an order for provision from the estate of her mother, the late Grazia Crimi. The defendant, Venera Elena Crimi, her older sister, is the executrix of the estate. 2 There is but one asset of the estate, a house at Homebush valued at $650,000 but requiring repairs in the agreed amount of between $100,000 and $120,000. Ms Crimi now lives there. It had been the matrimonial home of her parents. 3 Ms Crimi owns what was described in the evidence as a block of flats in Homebush, perhaps more accurately described as a duplex. The flats are worth $670,000 but require $20,000 to be spent on them to be make them habitable. 4 In a related matter in which Mrs Gazzo's brother, Phillip Crimi, sought provision from the estate, I made an order under the Family Provision Act 1982, s 24 designating the flats as notional estate of the deceased. That designation is equally applicable to these proceedings. Ms Crimi desires to remain in the house and desires any provision the Court might make in favour of Mrs Gazzo to be made out of the proceeds of sale of the flats. 5 Ms Crimi never married. In addition to holding down a number of jobs she tended to her mother and father. She regarded the house and the flats as her places of occupation but when she bought the flats, and until they became uninhabitable, she slept in one of them. During the illness of her father and her mother it was Ms Crimi who tended to them. 6 By his will, Ms Crimi's father, the late Luigi Crimi, appointed the deceased as his executrix and gave her his whole estate. The will provided that if she did not survive him by 30 days, Ms Crimi was appointed executrix and given the whole of the estate. The will concluded with the words: "I have given my estate to my daughter, VENERA ELENA CRIMI because she has been the one who has looked after my wife and myself in our old age and deserves to be rewarded for the care and attention she has given us. My other children I am certain will understand and appreciate the reason why I have given the estate to Venera."