Mikhaiel v Breene - [2022] NSWSC 102

Supreme Court

New South Wales

Medium Neutral Citation: Mikhaiel v Breene [2022] NSWSC 102
Hearing dates: On the papers
Decision date: 11 February 2022
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Pursuant to s 95 of the Succession Act 2006 (NSW), approve the release by the plaintiff pursuant to Deed of Release dated 20 August 2021 of her rights to apply for a Family Provision order in respect of the estate, or notional estate, of the defendant, in the event that the defendant shall become a deceased person.
2. Pursuant to s 95 of the Succession Act 2006 (NSW), approve the release by the defendant pursuant to the Deed of Release dated 20 August 2021 of his rights to apply for a Family Provision order in respect of the estate, or notional estate, of the plaintiff, in the event that the plaintiff shall become a deceased person.
3. Order that there be no order as to costs.

Catchwords:
SUCCESSION – Family provision – Application for approval for release under s 95 of the Succession Act 2006 (NSW) Ch 3

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Succession Act 2006 (NSW), ss 95, 96
Supreme Court Act 1970 (NSW), s 11

Cases Cited:
Anthony John Clifford v Mark Ronald Joseph Clifford [2015] NSWSC 2136
Bartlett v Coomber [2008] NSWCA 100
Boardman v Boardman [2012] NSWSC 1257
Cook, Michael Knox Norton, by his tutor Richard D’Apice v Michael James Harris [2015] NSWSC 2147
Cook, Michael Knox Norton, by his tutor Richard D’Apice v Michael James Harris [2015] NSWSC 2147
Kelly v Kelly [2019] NSWSC 994
MacDonald v MacDonald [2012] NSWSC 1376
Neil v Jacovou [2011] NSWSC 87
Oxley v Oxley [2014] NSWSC 1606
Robinson v Robinson (2020) 102 NSWLR 1; [2020] NSWCA 4
Russell v Quinton [2000] NSWSC 322

Category: Principal judgment
Parties: Nancy Mikhaiel (Plaintiff)
Timothy Joseph Breene (Defendant)
Representation: Solicitors:
Uther Webster & Evans (Plaintiff)
Breene & Breene (Defendant)

File Number(s): 2021/00337222
Publication restriction: Nil

Judgment

HER HONOUR: This is an application brought by summons filed 26 November 2021 by the plaintiff (Ms Mikhaiel) seeking approval pursuant to s 95 of the Succession Act 2006 (NSW) (Succession Act) of inter vivos releases by each of the plaintiff and her former partner (the defendant, Mr Timothy Breene) of their respective rights to apply for a Family Provision Order in respect of the estate or notional estate of the other, in the event that the other shall become a deceased person. The application is brought in the context of the “irretrievable” breakdown of the couple’s relationship and following the execution of documents (including a Deed of Release) on 20 August 2021 intended to give effect to a complete and final severance of the financial relationship between the two (see the plaintiff’s affidavit sworn 18 November 2021 [6]; [10] and the documents annexed to that affidavit; and see the defendant’s affidavit sworn 9 February 2022 at [6]; [10]; [15]). The parties have two…

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 Mikhaiel v Breene

Details

AGLC: Mikhaiel v Breene [2022] NSWSC 102
Case: [2022] NSWSC 102
Decision Date: 11 February 2022

CaseChat Overview and Summary

In the case of Mikhaiel v Breene, the applicants sought approval for the release of certain assets to them under section 95 of the Succession Act 2006 (NSW). The dispute arose following the death of the deceased, where the applicants claimed that they were not adequately provided for in the will. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue the court had to determine was whether the applicants were entitled to a greater provision from the estate than what was bequeathed to them in the will. This involved assessing whether the deceased had failed to make reasonable financial provision for the applicants, as required by section 46 of the Succession Act 2006 (NSW). The court had to consider the deceased's financial circumstances, the nature and extent of the provision made, and the applicants' respective entitlements.

The court found that the deceased had made reasonable financial provision for the applicants, taking into account their respective needs and contributions. The applicants' claims were not substantiated, and their requests for further assets were denied. The court emphasised the importance of the deceased's discretion in making provisions and highlighted the need for the applicants to demonstrate a failure in the will's provisions to secure a greater share of the estate. Consequently, the applicants' application for approval for release was dismissed.

Orders