Fitzgerald v Fitzgerald [2009] NSWSC 884

New South Wales Supreme Court

CITATION : Fitzgerald v Fitzgerald [2009] NSWSC 884

HEARING DATE(S) : 27/082009

JUDGMENT DATE : 30 September 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

DECISION : Paragraph 40

CATCHWORDS : Family Provison. Application under Family Provision Act 1982 by a son who was left out of the will. Order for small legacy. Costs of the plaintiff capped at amount of legacy. No matter of principle.

PARTIES : Barry Fitzgerald v Graham Fitzgerald

FILE NUMBER(S) : SC 3407/08

COUNSEL : Mr JJ Ryan for plaintiff Mr R Bell for defendant

SOLICITORS : Mark Brown & Associates Stephen Marks Solicitors

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

ASSOCIATE JUSTICE MACREADY

Wednesday 30 September 2009

3407 of 2008 Barry Fitzgerald v Graham Fitzgerald JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Brenda Alison Aylett who died on 1 January 2007. Three sons and a daughter survived her. One son is the plaintiff and another son is the defendant. Deceased's last will 2 The deceased made her last will on 17 March 2000 under which she appointed Graham Fitzgerald the defendant as her executor. After making provision for her husband who did not survive her, in clause 5(a) she gave her home at Kallaroo Road, San Remo in equal shares to her son, the defendant Graham, and her daughter, Susanne. 3 Under clause 5(b) she gave all monies standing to her credit with any bank to her sons John and Barry. Barry is the plaintiff in these proceedings. 4 Under clause 7 she gave the residue of her estate to Graham and Susanne.

Assets in the estate 5 The estate consists of the following: