Anthony John Clifford v Mark Ronald Joseph Clifford [2015] NSWSC 2136

Supreme Court New South Wales

Medium Neutral Citation: Anthony John Clifford v Mark Ronald Joseph Clifford [2015] NSWSC 2136 Hearing dates: 6 November 2015 Date of orders: 06 November 2015 Decision date: 06 November 2015 Jurisdiction: Equity - Family Provision List Before: Brereton J Decision: Release of rights approved. Catchwords: SUCCESSION – family provision and maintenance – release of rights to apply for family provision order – (NSW) Succession Act 2006, s 95 – requirement that evidence demonstrates releasor's understanding of what rights are being released – relaxation of evidentiary requirements in context of case – where prudent and advantageous for plaintiff to give release – where terms of release are fair and reasonable – where plaintiff has taken and given due consideration to independent advice. Legislation Cited: (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006, s 59(3), s 59(4), s 95 Category: Principal judgment Parties: Anthony John Clifford (plaintiff) Mark Ronald Joseph Clifford (first defendant) Jeanette Margaret Clifford (second defendant) Representation: Counsel: R Tregenza (plaintiff)

Solicitors: Nambucca Valley Legal (plaintiff) Dawson Lawyers (defendants) File Number(s): 2014/320143

Judgment (ex tempore) 1. HIS HONOUR: The plaintiff and the first defendant are the foster children of the testator who died on 1 November 2013 leaving a will dated 26 July 2013, probate of which was granted to the first defendant and his wife the second defendant. Under the will, the plaintiff received from the estate, which amounted to approximately $2.1 million, a legacy of $100,000 and one-third of the residue after certain other smaller legacies. Each of the defendants received the other two-thirds of the residue. On that footing the plaintiff would have received approximately $751,000. 2. The plaintiff has made an application for a family provision order claiming to be eligible, which eligibility is not disputed, in category (e). The defendants contend that sufficient provision was made for the plaintiff in the will, but have, for practical reasons, agreed to compromise the proceedings on the basis that the plaintiff receive from the estate a legacy of $850,000, inclusive of the $100,000 he has already received. A term of the settlement is that the plaintiff release any right to make an application for a further family provision order, and that the Court approve that release. 3. As I have endeavoured to explain more than once, when an application is made for approval of a release to make an application for further provision, as distinct from a release of a right to make an application for provision at all, it is necessary to focus attention, particularly in the evidence of the person giving the release, on just what is being released. As (NSW) Succession Act 2006, s 59(3) and s 59(4), have the effect of limiting the Court's ability to make a further family provision order to the circumstances where there has been a substantial detrimental change in the eligible person's circumstances since the first order was made or there has been, in effect, a material non-disclosure about the nature and extent of the estate or notional estate, it is, in my view, necessary that the supporting evidence make clear that the releasor understands that what is being released is the right to make an application in those limited and special circumstances. 4. The evidence in this case includes that the plaintiff understands that what is being released is the right to claim "additional provision by way of a further family provision order". It does not descend to the detail which I would prefer to see in connection with this type of release. However, in the overall context of the case, it seems to me that the potential for an application for further provision is very slight. Moreover, the plaintiff does depose to having obtained independent legal advice in relation to the release and having given due consideration to it. I am therefore prepared to relax my usual requirements in that respect. 5. I am satisfied that at the time of giving the release, it is to the advantage, financially and otherwise, of the plaintiff to do so, in that it is given in consideration for an increase in provision out of the deceased estate and the avoidance of further litigation, in circumstances where it is by no means clear that there would necessarily be provision made for him in addition to that made under the will if the matter proceeded to hearing. 6. For the same reasons, it is prudent for the plaintiff to give the release. The provisions of the agreement to make the release are fair and reasonable, and the releasing party has taken independent advice in relation to the release and deposed to having given due consideration to that advice. 7. Accordingly, the Court orders that: 1. In lieu of the provision made for the plaintiff in the will of the deceased Basil John Clifford, who died on 1 November 2013, the plaintiff receive from the estate of the deceased a legacy of $850,000, inclusive of the $100,000 already distributed to the plaintiff from the estate and inclusive of costs and all outstanding orders for costs and any entitlement to apply for reserved costs. 2. The amount of such legacies as remain outstanding bear interest at the rates provided for unpaid legacies under (NSW) Probate and Administration Act 1898 from the date seven days after this order. 3. The defendant's costs be paid out of the estate on the indemnity basis. 4. Pursuant to Succession Act, s 95, the Court approves the release contained in the deed dated 5 November 2015, a copy of which is initialled by me, dated this day and placed with the papers. 5. These orders may be entered forthwith.