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Kelly v Kelly

Kelly v Kelly

Case [2019] NSWSC 994 8 August 2019

Family Provision

Inter Vivos Release

Approval of Settlement

Section 95 Succession Act 2006 (NSW)

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Kelly v Kelly [2019] NSWSC 994
Hearing dates: 31 July 2019
Date of orders: 08 August 2019
Decision date: 08 August 2019
Jurisdiction: Equity
Before: Hallen J
Decision:
See Paragraph [92]

Catchwords: SUCCESSION – family provision – approval of settlement in circumstances where Defendant is a person under a legal incapacity – approval also sought of inter vivos release made by Plaintiff in respect of his right to make an application for a family provision order in respect of the Defendant’s estate upon her death, in proceedings where order for provision sought in respect of deceased father’s estate – Section 95 Succession Act 2006 (NSW) – extent of circumstances considered on approval of inter vivos release – whether inter vivos release made should be approved by Court – whether matter to be dealt with in Chambers or in Court – amended release then made by the Plaintiff which amended release approved
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Law Act 1975 (Cth)
Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Supreme Court Act 1970 (NSW)
Supreme Court Act 1995 (Qld)
Cases Cited: Anthony John Clifford v Mark Ronald Joseph Clifford [2015] NSWSC 2136
Bartlett v Coomber [2008] NSWCA 100
Boyter v Lepre; Estate of Umberto Lepre [2001] NSWSC 127
Cook, Michael Knox Norton, by his tutor Richard D’Apice v Michael James Harris [2015] NSWSC 2147
Dark v Dark [2016] NSWSC 1223
Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388
Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298
Kamil Faltas v Hong Peng; Tammy Westbury v Hong Peng; Bianca Faltas v Hong Peng; Emile Faltas v Hong Peng [2014] NSWSC 1922
Kannisto v Kannisto (No. 2) [2019] NSWSC 950
Kazzi v Kazzi [2018] NSWSC 1835
King Investment Solutions v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076
Le Grand v Criminal Justice Commission [2001] QCA 432
Lieberman v Morris (1944) 69 CLR 69; [1944] HCA 13
McMahon v McMahon (Supreme Court (NSW), Young J, 2 August 1985, unrep)
Mulcahy v Weldon [2001] NSWSC 474
Neil v Jacovou [2011] NSWSC 87
Oxley v Oxley [2014] NSWSC 1606
Piper v Mueller (2015) 54 Fam LR 369; [2015] FamCAFC 241
Robinson v Robinson [2019] NSWCA 180
Russell v Quinton [2000] NSWSC 322
Smith v Smith (No 3) (1986) 161 CLR 217; [1986] HCA 36
Texts Cited: Practice Note SC Eq 7
Category: Principal judgment
Parties: John Matthew Kelly (Plaintiff)
Suzanne Edith Kelly, by her tutor Jane Therese Willis (Defendant)
Representation:
Counsel:
C P Locke (Plaintiff)
C Birtles (Defendant)
Solicitors:
Andrew Dunne Solicitors (Plaintiff)
Bull, Son & Schmidt Lawyers (Defendant)

File Number(s): 2019/73570

Judgment

HIS HONOUR: These proceedings, which have been settled by the parties, and which are in the Family Provision List would not, normally, require considered reasons for judgment. However, in this case, it is necessary to provide written reasons because two of the terms of the Short Minutes of Order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kelly v Kelly

Details

AGLC: Kelly v Kelly [2019] NSWSC 994
Case: [2019] NSWSC 994
Decision Date: 08 August 2019

CaseChat Overview and Summary

In the matter of Kelly v Kelly, the dispute involved a family provision claim under the Succession Act 2006 (NSW), with the plaintiff seeking provision from the estate of their deceased father. The defendant, who was a person under a legal incapacity, had entered into a settlement agreement with the plaintiff, relinquishing any potential claim for family provision from the father's estate. Additionally, the plaintiff sought approval for an inter vivos release, waiving their right to apply for family provision from the defendant's estate upon her death. The case was heard by the Supreme Court of New South Wales.

The court was required to determine the appropriate circumstances under which an inter vivos release should be approved, particularly when the person under a legal incapacity is the beneficiary of the release. The court also had to decide whether the matter should be dealt with in chambers or in open court, given the sensitive nature of the inter vivos release. Furthermore, the court had to consider the validity of the amended release subsequently proposed by the plaintiff, which modified the terms of the initial release.

The court found that the initial inter vivos release should not be approved as it did not adequately protect the interests of the defendant. The court emphasised the importance of ensuring that any release made by a person under a legal incapacity is in their best interests. The court also ruled that the matter should be dealt with in open court to ensure transparency and fairness. Upon the plaintiff's submission of an amended release, which provided clearer protections for the defendant, the court approved the amended inter vivos release, finding it to be in the best interests of the defendant.

The final orders of the court included the approval of the amended inter vivos release, thereby waiving the plaintiff's right to apply for family provision from the defendant's estate upon her death. The court's decision underscored the importance of safeguarding the interests of individuals under a legal incapacity and the need for careful consideration in approving inter vivos releases in such circumstances.

Orders