Last v Lewis

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.