NSW Caselaw
New South Wales Supreme Court
CITATION : Ryan Larraine McGarry v Margaret Berndaette McGarry [2009] NSWSC 504
HEARING DATE(S) : 25/05/09
JUDGMENT DATE : 9 June 2009
JUDGMENT OF : Forster J at 1
DECISION : see paras 48 to 50.
CATCHWORDS : Family Provision Act - extent of widow's "primacy" - consideration of the first and second questions identified in Luciano v Rosenblum
LEGISLATION CITED : Family Provision Act, 1982 (NSW)
CATEGORY : Principal judgment
Bladwell v Davis & Anor [2004] NSWCA 170 Luciano v Rosenblum (1985) 2 NSWLR 65 CASES CITED : McDougall v Rogers [2006] NSWSC 484 Milillo v Konnecke [2009] NSWCA 109 Singer v Berghouse (No2) (1994) 181 CLR 201
PARTIES : Ryan Larraine McGarry Margaret Bernadette McGarry
FILE NUMBER(S) : SC 3242/2008
COUNSEL : Plaintiff: G. McGrath Defendant: L.J. Ellison SC
SOLICITORS : Plaintiff: Lobban McNally Lawyers Defendant: Allars Mottee Hannaford Solicitors
LOWER COURT JURISDICTION :
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
FORSTER J
TUESDAY, 9 JUNE 2009
3242/08 Ryan Larraine McGarry v Margaret Bernadette McGarry JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act, 1982 ("the FPA") for provision to be made out of the estate or the notional estate or both of the late Michael Gerrard McGarry ("the deceased") who died on 14 March 2007 at the age of 45. 2 By his will dated 21 September 1995, probate whereof was on 26 April 2007 granted to the defendant, his widow, the deceased left the whole of his estate to the defendant. 3 The plaintiff is a daughter of the deceased, who was born on 27 August 1985 out of a relationship between the deceased and Janmaree Walsh. The plaintiff is presently 23 years old. The only other person whose interest may be affected by the outcome of these proceedings is the deceased's only other child, namely Rachel McGarry, who was born to the deceased and the defendant on 25 February 1993 and is presently 16 years old. 4 As a child of the deceased, the plaintiff is an "eligible person" within the meaning of section 6(1) of the FPA. She brings her application under section 7 of the FPA, which provides as follows: " 7 Provision out of estate or notional estate of deceased person
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