Boyter v Lepre; Estate of Umberto Lepre

[2001] NSWSC 127

CITATION:	Boyter v Lepre; Estate of Umberto Lepre [2001] NSWSC 127
CURRENT JURISDICTION:	Equity Division Probate List
FILE NUMBER(S):	SC 108604/2000
HEARING DATE(S):	05/03/2001
JUDGMENT DATE:	5 March 2001
PARTIES :	Lynne Dorothy Boyter (P1) David Thomas Howe (P2) Anella Rose Lepre (D)
JUDGMENT OF:	Young J

COUNSEL :	R May (Solicitor)(P) P Hallen SC (D)
SOLICITORS:	Kingston Swift (P) J P Gould (D)
CATCHWORDS:	SUCCESSION [335]- Family Provision- Application for release- What evidence required.
LEGISLATION CITED:	Family Provision Act 1982, s 31
DECISION:	Orders made.

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

PROBATE LIST

YOUNG J

MONDAY 5 MARCH 2001

108604/00 - BOYTER v LEPRE; ESTATE OF UMBERTO LEPRE

JUDGMENT

1 HIS HONOUR: This is an application in the probate list to approve a release under s 31 of the Family Provision Act, 1982.

2    Last week I was not happy with the evidence that the plaintiffs, in giving the release, had obtained proper advice. Today the evidence is really not much better.

3    The evidence essentially is from the plaintiffs and the plaintiffs’ solicitor that the plaintiffs have read the terms of settlement; that prior to signing the terms of settlement they obtained legal advice; they understood they were releasing the estate from further claim; that they understood the written nature of the terms of settlement; and that they had signed the document accordingly.

4 It is becoming the habit of seeking a s 31 release in every case. It is very often not necessary and it is only a matter of more abundant caution. However, the Court is not, without proper evidence, going to lend itself to merely signing off on deals which have been made. The Court ordinarily accepts if it is to be asked to give a release under s 31 and counsel has been involved in the matter, for the counsel to tell the judge or master that he or she is satisfied that it is a proper settlement and that the client has been fully advised.

5    If a solicitor is involved who is not one who regularly appears before the Court (so that the Court knows the extent to which that solicitor understands the law of Family Provision), then it is usually insufficient merely to set out some formula such as in the present case "I have read the terms of settlement to the client and explained them to him or her". The solicitor should set out in detail how it was the solicitor formed the view that the client understood the terms. A formula is not enough, facts are needed.

6    However, in the present case it would be wasting the parties' money to spend too much time on the matter, so I will sign off on this release a little against my better judgment.

7    I make orders in accordance with the short minutes initialled by me dated and placed with the papers.

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Last Modified: 03/08/2001