Kelly v Kelly [2006] NSWSC 371

New South Wales Supreme Court

CITATION : Kelly v Kelly [2006] NSWSC 371 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 02/05/2006

JUDGMENT DATE : 2 May 2006

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE : 05/02/2006

DECISION : Paragraph 61

CATCHWORDS : Famiily Provision. Application under the Family Provision Act 1982 by a widow who had divorced the deceased a week before he died. Estate passed to young children. Order for plaintiff to retain the estate.

PARTIES : Susan Patricia Kelly v Edna Alice Kelly

FILE NUMBER(S) : SC 3866 of 2005

COUNSEL : Mr J. Wilson SC for plaintiff Mr J. Trebeck for defendant

SOLICITORS : Barkus Edwards Doolan for plaintiff Garden & Montgomerie for defendant

- 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 2 MAY 2006

3866/05 - SUSAN PATRICIA KELLY v EDNA ALICE ANN KELLY - ESTATE OF THE LATE PAUL ALLAN KELLY

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Paul Allan Kelly who died on 25 April 2004 aged forty years. At the time of his death he was a divorced man. He was survived by his two children from his marriage to Susan Patricia Kelly, namely, Kimberley Shea Kelly and Mikaela Ashleigh Kelly. The deceased was survived also by the plaintiff, his former wife Susan Patricia Kelly, and his mother, Edna Alice Ann Kelly, the defendant in these proceedings.

The last will of the deceased

2 The deceased made his last will on 14 July 1996. He left his estate to the plaintiff but as a result of s 15A of the Wills, Probate & Administration Act that bequest failed because it is negatived under the Act as a result of the dissolution of his marriage which occurred a week before he died.