Moore v Foodey [2006] NSWSC 764

New South Wales Supreme Court

CITATION : Moore v Foodey [2006] NSWSC 764

HEARING DATE(S) : 27/07/06

JUDGMENT DATE : 27 July 2006

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE : 07/27/2006

DECISION : Paragraph 59

CATCHWORDS : Family Provision. Claim under the Family Provision Act 1982 by a stepson left out of the will of the deceased. Order for provision made. No matter of principle.

PARTIES : Shayne Edward Moore v Kevin George Foodey (Estate of Leslie Ronald Foodey)

FILE NUMBER(S) : SC 5390/2004

COUNSEL : Mr C Jackson for plaintiff Mr P O'Loughlin for defendant

SOLICITORS : Creswick McCarthy for plaintiff Kells The Lawyers for defendant

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

ASSOCIATE JUSTICE MACREADY

THURSDAY 27 JULY 2006

5390/04 - SHAYNE EDWARD MOORE v KEVIN GEORGE FOODEY - ESTATE OF LESLIE RONALD FOODEY

JUDGMENT

1 This is an application under the Family Provision Act in respect of the estate of Leslie Ronald Foodey who died on 12 April 2004. He was survived by his two children of his first marriage and the plaintiff, his stepson. Both his wives pre-deceased him. 2 The deceased had made his will on 4 February 2002. He appointed his brother as his executor and he gave the whole of his estate to the two children, Gail Keene and Janine Martin. 3 He had previously made a will in 1981 at the same time as his then wife had made a will. His wife, of course, was the plaintiff's mother. Under those wills they provided that generally all of the estate was to pass to the other in the event one the pre-deceased the survivor, and agreed to leave the whole of the estate to the three children equally. Assets in the Estate 4 The estate principally consisted of cash and a home. The home has been sold and there will be an amount of net proceeds of $244,000. Some of the costs have been paid out of the cash that was available at the date of death and the balance now available is $58,911.90. There were shares worth $5,470 but they have already been distributed to the two beneficiaries. 5 The defendant's costs total $50,000, of which $30,000 still are to be paid; and the plaintiff's costs are in the order of $30,000. This will lead to a net estate, if an order is made in favour of the plaintiff, of some $248,000. Family History