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

Supreme Court New South Wales

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