Vincent Joseph Fittler v Philip John Fittler & Anor - The Estate of Mary Kathleen Fittler [2009] NSWSC 291

New South Wales Supreme Court

CITATION : Vincent Joseph Fittler v Philip John Fittler & Anor - The Estate of Mary Kathleen Fittler [2009] NSWSC 291

HEARING DATE(S) : 7 April 2009

JUDGMENT DATE : 7 April 2009

JUDGMENT OF : Bergin CJ in Eq

CATCHWORDS : [SUCCESSION] - Construction of wills - Extrinsic evidence as to general intention of testator - Evidence of description of property by testator - Identification of property referred to in will

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 Part 54

Perrin & Ors v Morgan & Ors [1943] AC 399 Lutheran Church of Australia South Australia District Incorporated v Farmers' Co-operative Executors and Trustees Ltd & Ors (1970) 121 CLR 628 Scale v Rawlins [1892] AC 342 CASES CITED : Re Bailey; Barrett v Hyder [1951] Ch 407 Hatzantonis & Anor v Lawrence [2003] NSWSC 914 Armstrong v Childrens Hospital Westmead [2008] NSWSC 1315 Re Tyrie, deceased [No 1] [1972] VR 168 Gerhady v South Australian Auxiliary to the British & Foreign Bible Society Inc & Ors (No 3) (1986) 44 SASR 195

Vincent Joseph Fittler PARTIES : Philip John Fittler Carmel Anne Fittler

FILE NUMBER(S) : SC 117191 of 2006

COUNSEL : MJ Heath (Plaintiff) M Gorrick (Defendants)

SOLICITORS : Rice More & Gibson (Plaintiffs) L Rundle & Co (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

BERGIN CJ in EQ

7 APRIL 2009

117191/06 VINCENT JOSEPH FITTLER v PHILIP JOHN FITTLER & ANOR – THE ESTATE OF MARY KATHLEEN FITTLER JUDGMENT 1 Horace Joseph Fittler and his wife Mary Kathleen Fittler (the deceased), had three children, Carmel Anne Fittler, the eldest, Vincent Joseph Fittler, the second born and Philip John Fittler, the youngest of the three. Horace Fittler died in September 1988 and the deceased died in November 1999. The deceased made a will on 2 November 1998 and these proceedings relate to the terms of that will. 2 The deceased's Will included the following: