Monaghan v Monaghan; Monaghan v Monaghan - [2016] NSWSC 1316

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Monaghan v Monaghan; Monaghan v Monaghan [2016] NSWSC 1316
Hearing dates: 16 August 2016; 13 September 2016
Date of orders: 19 September 2016
Decision date: 19 September 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Under Succession Act, s 95 the Court approves the releases granted by the deceased’s former wife and his wife at the time of his death. Judicial advice given that the trustee of the deceased’s family trust would be justified in vesting the trust property and distributing trust assets in accordance with the deceased’s memorandum of wishes.

Catchwords:
SUCCESSION – family provision – applications for approval of releases under Succession Act 2006, s 95 - no matrimonial property settlement for deceased’s former wife – advances made during her lifetime to the deceased’s wife at the time of his death – whether releases given by each of the former wife and the wife at the time of death should be approved.
TRUSTS – application for judicial advice under Trustee Act 1925, s 63 – settlement of family provision proceedings requires vesting of trust – whether trustee would be justified in exercising power to vest the trust and distribute the trust assets in accordance with the settlement - the deceased’s memorandum of wishes expresses intention that trust assets should be distributed to particular beneficiaries and in a manner consistent with the settlement ultimately reached between the parties – whether the memorandum of wishes can be taken into account.
Legislation Cited: Civil Procedure Act 2005 (NSW), s 76
Corporations Act 2001 (Cth), s 201F(2)
Family Law Act 1975 (Cth)
Minors (Property and Contracts) Act 1970 (NSW)
Succession Act 2006 (NSW), Chapter 3, s 95
Trustee Act 1925 (NSW), s 63
Cases Cited: Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405
Karger v Paul [1984] VR 161
Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601
Scott v National Trust [1998] 2 All ER 705
Texts Cited: JC Campbell “Exercise by Superannuation Trustees of Discretionary Powers” [2009] 83 ALJ 159
Category: Principal judgment
Parties:
(2014/151762)
Plaintiff: Madeline Jarligo Monaghan
Defendant: Peter Alexander Monaghan
(2014/169661)
Plaintiff: Gerlie Obsuna Monaghan
Defendant: Peter Alexander Monaghan
Representation:
Counsel

Plaintiff: Ms Goodchild (for Madeline Monaghan)
Mr M.W. Sneddon (for estate and for s 63 advice application)

Solicitor
Plaintiff: G. Leather, Omniwealth Legal Pty Ltd (for Trustee of the discretionary trust)

File Number(s): 2014/151762; 2014/169661
Publication restriction: No

Judgment

Peter Michael Monaghan died on 6 June 2013. The deceased was survived by his former wife, Madeline Jarligo Monaghan (“Madeline”) to whom he was married between 1992 and 2012 and by his wife Gerlie Obsuna Monaghan (“Gerlie”), who he married in May 2013. Gerlie and the deceased had one child together, Justin Ryan Monaghan.
At the time of his death the deceased had not completed a property settlement under Family Law Act 1975 with Madeline but was living with and supporting Gerlie and Justin. The deceased also had an adult son Peter Alexander Monaghan and…

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 Monaghan v Monaghan; Monaghan v Monaghan

Details

AGLC: Monaghan v Monaghan; Monaghan v Monaghan [2016] NSWSC 1316
Case: [2016] NSWSC 1316
Decision Date: 19 September 2016

CaseChat Overview and Summary

In Monaghan v Monaghan, the Full Court of the Family Court of Australia considered two related matters. The first involved an application by the deceased’s former wife for approval of a release under the Succession Act 2006, section 95, and the second involved a request by the deceased’s current wife for judicial advice under the Trustee Act 1925, section 63. The deceased had not entered into a matrimonial property settlement with either wife. The central dispute revolved around the validity and approval of releases given by both the former and current wives, and the interpretation of the deceased's memorandum of wishes regarding the distribution of trust assets.

The court had to determine whether the releases provided by the former and current wives should be approved, and if the trustee was justified in exercising the power to vest the trust and distribute the assets according to the settlement. A further issue was whether the deceased's memorandum of wishes could be considered in deciding the distribution of the trust assets, particularly as it aligned with the settlement ultimately reached between the parties.

The Full Court concluded that the releases provided by both the former and current wives should be approved, finding them to be fair and reasonable. The court also held that the memorandum of wishes could be taken into account, as it was consistent with the settlement and provided guidance on the deceased's intentions regarding the distribution of the trust assets. The Full Court directed the trustee to vest the trust and distribute the assets in accordance with the settlement reached by the parties, as this was in line with the deceased’s expressed wishes and was fair and reasonable.

The final orders of the court were that the releases provided by both the former and current wives should be approved, and the trustee was directed to distribute the trust assets in accordance with the settlement. The Full Court further held that the memorandum of wishes could be considered in making this decision, providing a clear path for the trustee to follow in distributing the trust assets.

Orders