Supreme Court
New South Wales
Medium Neutral Citation: Last v Lewis [2022] NSWSC 791 Hearing dates: 26 – 29 July 2021 Date of orders: 16 June 2022 Decision date: 16 June 2022 Jurisdiction: Equity Before: Robb J Decision: See par 218
Catchwords: SUCCESSION — family provision — approval of release — plaintiff enters into deed of family arrangement with deceased and others whereby deceased and deceased’s wife promise to transfer real property to plaintiff and plaintiff’s then-husband at undervalue — plaintiff promises by deed not to seek to challenge in any way the wills of the deceased or deceased’s wife — defendant executor seeks to enforce deed against plaintiff by approval of release of rights to apply for a family provision order under Succession Act 2006 (NSW), s 95 — whether relevant term of deed constitutes release for purposes of s 95 — whether to approve release — deceased exerts pressure on plaintiff to execute deed without seeking legal advice — plaintiff receives insufficient legal advice — plaintiff under financial pressure — attempt at early inheritance and equality of result among deceased’s children undermined by precariousness of plaintiff’s marriage — approval of release declined
SUCCESSION — family provision — claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — plaintiff with significant medical needs — plaintiff receives early inheritance by deed of family arrangement — whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made — further provision ordered
Legislation Cited: Family Law Act 1975 (Cth), s 79
Family Provision Act 1982 (NSW), Pt 2, s 31
Interpretation Act 1987 (NSW), s 34
Probate and Administration Act 1898 (NSW), s 84A
Succession Act 2006 (NSW), ss 59, 95, 100, Sch 1 cl 11
Succession Amendment (Family Provision) Act 2008 (NSW), s 3
Cases Cited: Alati v Kruger (1955) 94 CLR 216; [1955] HCA 64
Bassett v Bassett [2021] NSWCA 320
Boardman v Boardman [2012] NSWSC 1257; (2012) 10 ASTLR 138
Haas Timber & Trading Co Pty Ltd v Wade (1954) 94 CLR 593; [1954] HCA 39
In the Marriage of Kessey (1994) 18 Fam LR 149
Kelly v Kelly [2019] NSWSC 994; (2019) 17 ASTLR 429
Kitteridge v Kitteridge [2022] NSWSC 193
Lieberman v Morris (1944) 69 CLR 69; [1944] HCA 13
Mabb v Mabb (2020) 60 Fam LR 299; [2020] FamCAFC 18
Pavlis v Pavlis [2021] NSWSC 1117
Robinson v Robinson (2020) 102 NSWLR 1; [2020] NSWCA 4
Ruthol Pty Ltd v Mills [2003] NSWCA 56; (2003) 11 BPR 20,793
Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40
Texts Cited: National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys…
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- AGLC
- Last v Lewis [2022] NSWSC 791
- Case
- [2022] NSWSC 791
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the relevant term of the deed constituted a release for the purposes of section 95 of the Succession Act 2006 (NSW), and if so, whether the court should approve the release. Additionally, the court had to determine whether the deceased had made proper provision for the plaintiff, given her significant medical needs and the early inheritance she received through the deed of family arrangement. The court had to consider the circumstances under which the deed was executed, including the deceased's pressure on the plaintiff, the inadequacy of the legal advice the plaintiff received, and the precariousness of the plaintiff's marriage at the time of the agreement.
The court declined to approve the release, finding that the deceased had exerted pressure on the plaintiff to execute the deed without seeking independent legal advice, and that the plaintiff was under financial pressure at the time. The court noted that the attempt at early inheritance and equality of result among the deceased's children was undermined by the precariousness of the plaintiff's marriage. The court further found that the deceased had not made adequate provision for the plaintiff and ordered further provision to be made from the estate. The court determined that the nature and quantum of the provision would need to be assessed further in light of the plaintiff's significant medical needs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
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