Foley v Ellis [2008] NSWCA 288

Appeal Outcome: Special leave dismissed with costs - 19 June 2009 (S522/2008)

New South Wales Court of Appeal

CITATION: Foley v Ellis [2008] NSWCA 288

HEARING DATE(S): 29 September 2008

JUDGMENT DATE: 6 November 2008

JUDGMENT OF: Beazley JA at 1; Basten JA at 2; Sackville AJA at 16

1.The appeal be allowed.

2. The orders made by the Associate Justice dismissing the appellant's claim and in relation to the costs of the proceedings be set aside.

3. The bequests to Karl Konrad Foley and Patrick Walter Foley under the will of the Deceased dated 23 August 2002 remain unaltered and be paid without the deduction of any costs or expenses associated with the proceedings in this Court or in the Court below.

4. The bequests referred to in Order 3 be satisfied by the payment to each of Karl Konrad Foley and Patrick Walter Foley the following sums: (i) $184,000 (ii) a sum representing simple interest on the sum of $184,000 calculated at the rate of 6% per annum from 19 June 2005 until the date of payment. DECISION: 5. In lieu of the provision for the appellant in clause 5 of the will, the appellant be paid a legacy of $500,000.

6. Pursuant to s 13 of the Family Provision Act 1982 (NSW) the burden of payment of Order 5 shall be met out of all assets remaining in the estate after payment of the bequests referred to in Order 3 above, with the intent that the burden of the payment should be borne in equal shares by the beneficial entitlements of Peter James Ellis and Vivienne Joan Ellis.

7. The estate of the Deceased to pay the appellant's costs of the proceedings below, including the hearing before the Associate Justice and the costs of her appeal, on a party/party basis.