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Last v Lewis

Last v Lewis

Case [2022] NSWSC 791 16 June 2022

Family Provision

Release of Rights

Deed of Family Arrangement

Pressure to Execute

Inadequate Legal Advice

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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
Dark v Dark [2016] NSWSC 1223
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
Smith v Smith (No 3) (1986) 161 CLR 217; [1986] HCA 36
White v Garden (1851) 10 CB 919; 136 ER 364

Texts Cited:
National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys…

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 Last v Lewis

Details

AGLC: Last v Lewis [2022] NSWSC 791
Case: [2022] NSWSC 791
Decision Date: 16 June 2022

CaseChat Overview and Summary

The case of Last v Lewis involved a dispute under the Succession Act 2006 (NSW) concerning the deceased's estate. The plaintiff, who is an adult child of the deceased, sought family provision from the estate on the basis that the deceased had not made adequate provision for her needs. The dispute centred around a deed of family arrangement executed between the plaintiff, the deceased, and others. In the deed, the deceased and his wife promised to transfer property to the plaintiff and her then-husband at an undervalue, in exchange for the plaintiff's promise not to challenge the wills of the deceased and his wife. The defendant, as the executor of the deceased's estate, sought to enforce the deed by applying for the court's approval to release the plaintiff's rights to apply for a family provision order.

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