Last v Lewis [2022] NSWSC 791

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 General (Queensland Law Reform Commission, Report 58, 2004) National Committee for Uniform Succession Laws, Report to the Standing Committee of Attorneys General on Family Provision (Queensland Law Reform Commission, Miscellaneous Paper 28, 1997) New South Wales Law Reform Commission, Testator's Family Maintenance and Guardianship of Infants Act 1916, (Working Paper 12, October 1974) New South Wales Law Reform Commission, Testator's Family Maintenance and Guardianship of Infants Act 1916, (Report 28, 1977) New South Wales Law Reform Commission, Uniform Succession Laws: Family Provision (Report 110, May 2005) Category: Principal judgment Parties: Robyn Janet Last (Plaintiff/Cross-Defendant) Kevin John Lewis (Defendant/Cross-Claimant) Representation: Counsel: M Galvin (Plaintiff/Cross-Defendant) D Stewart (Defendant/Cross-Claimant)