Herr v Fitzgibbon [2008] NSWSC 297

Herr v Fitzgibbon [2008] NSWSC 297

Each plaintiff was a child of the deceased and a person whom the deceased ought to have had in contemplation as having a legitimate claim on her bounty, yet none received provision under the will. The estate was small, but Mr Fitzgibbon's evidence was not accepted where it differed from the plaintiffs' evidence, no evidence was adduced as to Ms Fitzgibbon's financial position, and Mr Fitzgibbon had his own one-third interest in the property. Mr Malcolm Herr was financially better placed than Mr John Herr and Mrs Gazzard. Adequate provision therefore required legacies of $40,000 each to Mr John Herr and Mrs Gazzard and $20,000 to Mr Malcolm Herr.

Jurisdiction
Australia
Judgment Date
07 April 2008
Procedural Posture
Application for Family Provision Under Family Provision Act 1982, S 7 / Judgment After Hearing; Parties Directed to Bring in Short Minutes of Order
Outcome
Family provision granted by legacies: $40,000 each for Mr John Herr and Mrs Gazzard, and $20,000 for Mr Malcolm Herr.
Legal Topics
['failure by Testator to Make Sufficient Provision' 'claims by Adult Children' 'small Estate' 'life Tenancy' 'assessment of Financial Need']
['succession' 'family Provision'] ['failure by Testator to Make Sufficient Provision' 'claims by Adult Children' 'small Estate' 'life Tenancy' 'assessment of Financial Need']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Family Provision Under Family Provision Act 1982, S 7 / Judgment After Hearing; Parties Directed to Bring in Short Minutes of Order

Legal Issues

  1. 1 ['Whether the deceased left each plaintiff without adequate provision for proper maintenance, education and advancement in life under the Family Provision Act 1982.' 'What provision ought to be made for each plaintiff out of the estate.' "How the small estate, the plaintiffs' circumstances, the defendant's circumstances, and the testamentary gifts should affect provision."]

Ratio Decidendi

Each plaintiff was a child of the deceased and a person whom the deceased ought to have had in contemplation as having a legitimate claim on her bounty, yet none received provision under the will. The estate was small, but Mr Fitzgibbon's evidence was not accepted where it differed from the plaintiffs' evidence, no evidence was adduced as to Ms Fitzgibbon's financial position, and Mr Fitzgibbon had his own one-third interest in the property. Mr Malcolm Herr was financially better placed than Mr John Herr and Mrs Gazzard. Adequate provision therefore required legacies of $40,000 each to Mr John Herr and Mrs Gazzard and $20,000 to Mr Malcolm Herr.

Court Disposition

Family provision granted by legacies: $40,000 each for Mr John Herr and Mrs Gazzard, and $20,000 for Mr Malcolm Herr.

Orders

  • ['Legacy of $40,000 to John George Herr.' 'Legacy of $40,000 to Catherine Judith Gazzard.' 'Legacy of $20,000 to Malcolm Ian Herr.' 'Parties were directed to bring in short minutes of order reflecting the reasons.' 'The Court stated it would hear the parties on the terms of orders, including whether the legacies...