Toole v Nightingale [2003] NSWSC 981

New South Wales Supreme Court

CITATION : Toole v Nightingale [2003] NSWSC 981 HEARING DATE(S) : 15 October 2003 - 17 October 2003 JUDGMENT DATE : 31 October 2003 JURISDICTION: Equity JUDGMENT OF : Master Macready at 1 DECISION : See paragraph 86

CATCHWORDS : Family Provision - Application by a son and daughter in respect of an estate comprising of a country property left to two other sons - Legacies awarded - No matter of principle PARTIES : Narelle Therese Toole and Errol William Nightingale v Harley Joseph Nightingale and Gerald Bruce Nightingale FILE NUMBER(S) : SC 4055/01 COUNSEL : Mr C M Simpson - Plaintiffs Mrs L Snelling - Defendants SOLICITORS : MJ Duffy & Son Solicitors Dubbo - Plaintiffs Messenger & Messenger Solicitors Bathurst - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Master Macready

Friday 31 October 2003

4055/01 Narelle Therese Toole and Errol William Nightingale v Harley Joseph Nightingale and Gerald Bruce Nightingale JUDGMENT 1 Master: This is the hearing of an application under the Family Provision Act 1982 in respect of the estate of the late Gerald Thomas Nightingale who died on 26 August 2000 aged 88 years. The deceased was survived by four of his five children. His wife predeceased him. The parties are the four children. The will of the deceased 2 The deceased made his last will on 26 May 2000 under which he appointed the defendants the executors. He bequeathed to the plaintiffs as tenants in common his insurance policy now amounting to $25,254.35. He bequeathed a 2 acre property worth $2,000 to his grandson Sean Pascoe and a 21 acre property worth $90,000 to his grandson Derek Nightingale. He bequeathed his car worth $5,800 to his granddaughter Nyree Clark. The residue of his estate he left to his sons the defendants. The present estate of the deceased 3 The main asset in the estate was the property "Raheen" Rockley. A substantial part of that property has recently been sold for a total of $525,000 and the balance of the property is valued at $390,000. Apart from the properties subject to the specific bequests to which I have referred above the remaining estate consisted of the following: