Dark v Dark [2016] NSWSC 1223

Supreme Court New South Wales

Medium Neutral Citation: Dark v Dark [2016] NSWSC 1223 Hearing dates: 17 and 18 August 2016 Decision date: 22 August 2016 Jurisdiction: Equity - Family Provision List Before: White J Decision: Refer to paras [155]-[156] of judgment. Catchwords: SUCCESSION — Family provision — Application by the defendant under s 95 of the Succession Act 2006 (NSW) for the approval of the release of the plaintiff's right to make an application for a family provision order — Plaintiff had previously signed an agreement releasing her right to make an application for a family provision order — Whether the Court should approve the release — The making of the release was not advantageous to the plaintiff nor fair and reasonable — Plaintiff did not receive informative independent advice before signing the agreement — Plaintiff coerced into giving the release — Release not approved — Application by the plaintiff for family provision order under Pt 3.2 of the Succession Act 2006 (NSW) — Plaintiff is the widow of the deceased — No provision made for the plaintiff under the will of the deceased —Three children of the deceased to inherit on attaining the age of 25 years — Majority of the deceased's estate consists of the proceeds of the sale of a property sold to the deceased by his mother at a substantial undervalue — Whether adequate and proper provision not made in will of the deceased for the plaintiff — Plaintiff has no financial buffer for adverse contingencies —Plaintiff responsible for two of the deceased's children — Deceased's moral obligation to attempt to ensure his children have a stable financial environment in which to grow up not provided for — Provision made for the plaintiff out of the estate of the deceased Legislation Cited: Children Act 1989 (UK) Evidence Act 1995 (NSW) Family Law Act 1975 (Cth) Minors (Property and Contracts) Act 1970 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Trustee Act 1925 (NSW) Cases Cited: Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112 Hewer v Bryant [1970] 1 QB 357 Mayfield v Lloyd-Williams [2004] NSWSC 419 M'Creight v M'Creight (1849) 13 I Eq R 314 Mulcahy v Weldon [2001] NSWSC 474 Neil v Jacovou [2011] NSWSC 87 Re Agar-Ellis (1883) 24 Ch D 317 Re B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676 Russell v Quinton [2000] NSWSC 322 Secretary, Department of Health and Community Services v JWB and SMB (Marion's case) (1992) 175 CLR 218 Singer v Berghouse [1994] 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191 Texts Cited: Blackstone's Commentaries, 17th ed (1830) Cretney, Principles of Family Law, 3rd ed (1979) Macpherson's Law Relating to Infants (1842) Simpson on the Law of Infants, 4th ed (1926) Category: Principal judgment Parties: Joeanne Marie Dark (Plaintiff) Aaron Andrew Dark (Defendant) Representation: Counsel: H W Somerville (Plaintiff) J P Lo Schiavo (Defendant)