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

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

The phrase 'the land which is my house block with 10 acres' in clause 3(c) of Mary Kathleen Fittler's will sufficiently identifies, with the aid of extrinsic evidence such as the Linen Plan, the land intended to be given to Philip John Fittler. The gift is valid and refers to Lot 1 as depicted on the Linen Plan...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
07 April 2009
Procedural Posture
Will Construction (succession) / Judgment on Construction of Will and Associated Orders
Outcome
Declaration that the gift in clause 3(c) identifies Lot 1 on the Linen Plan as the property to Philip John Fittler; costs of the parties to date to be paid out of the estate; matter stood over before Registrar in Equity; liberty to apply granted.
Legal Topics
['construction of Wills' 'extrinsic Evidence' 'identification of Property in Wills' 'probate Proceedings']
['succession' 'equity'] ['construction of Wills' 'extrinsic Evidence' 'identification of Property in Wills' 'probate Proceedings']

Source-derived case record

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Procedural Posture

Will Construction (succession) / Judgment on Construction of Will and Associated Orders

Legal Issues

  1. 1 ["Whether clause 3(c) of Mary Kathleen Fittler's will – 'the land which is my house block with 10 acres' – is sufficiently certain to be effective or fails for uncertainty" 'Whether extrinsic evidence may be admitted to aid the construction of the will to identify the property' 'In the event the devise fails, whether the land passes under another clause or falls into residue']

Ratio Decidendi

The phrase 'the land which is my house block with 10 acres' in clause 3(c) of Mary Kathleen Fittler's will sufficiently identifies, with the aid of extrinsic evidence such as the Linen Plan, the land intended to be given to Philip John Fittler. The gift is valid and refers to Lot 1 as depicted on the Linen Plan dated 29 March 1978.

Court Disposition

Declaration that the gift in clause 3(c) identifies Lot 1 on the Linen Plan as the property to Philip John Fittler; costs of the parties to date to be paid out of the estate; matter stood over before Registrar in Equity; liberty to apply granted.

Orders

  • ["Declaration that 'the land which is my house block with 10 acres' in clause 3(c) of Mary Kathleen Fittler's will means Lot 1 of the Linen Plan dated 29 March 1978 forming part of Exhibit A." 'The costs of the parties up to and including the judgment date are to be paid out of the estate.' "The matter is stood over...