Supreme Court New South Wales Medium Neutral Citation: Kelly v Kelly [2019] NSWSC 994 Hearing dates: 31 July 2019 Date of orders: 08 August 2019 Decision date: 08 August 2019 Jurisdiction: Equity Before: Hallen J Decision: See Paragraph [92] Catchwords: SUCCESSION – family provision – approval of settlement in circumstances where Defendant is a person under a legal incapacity – approval also sought of inter vivos release made by Plaintiff in respect of his right to make an application for a family provision order in respect of the Defendant's estate upon her death, in proceedings where order for provision sought in respect of deceased father's estate – Section 95 Succession Act 2006 (NSW) – extent of circumstances considered on approval of inter vivos release – whether inter vivos release made should be approved by Court – whether matter to be dealt with in Chambers or in Court – amended release then made by the Plaintiff which amended release approved Legislation Cited: Civil Procedure Act 2005 (NSW) Family Law Act 1975 (Cth) Family Provision Act 1982 (NSW) Succession Act 2006 (NSW) Supreme Court Act 1970 (NSW) Supreme Court Act 1995 (Qld) Cases Cited: Anthony John Clifford v Mark Ronald Joseph Clifford [2015] NSWSC 2136 Bartlett v Coomber [2008] NSWCA 100 Boyter v Lepre; Estate of Umberto Lepre [2001] NSWSC 127 Cook, Michael Knox Norton, by his tutor Richard D'Apice v Michael James Harris [2015] NSWSC 2147 Dark v Dark [2016] NSWSC 1223 Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388 Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298 Kamil Faltas v Hong Peng; Tammy Westbury v Hong Peng; Bianca Faltas v Hong Peng; Emile Faltas v Hong Peng [2014] NSWSC 1922 Kannisto v Kannisto (No. 2) [2019] NSWSC 950 Kazzi v Kazzi [2018] NSWSC 1835 King Investment Solutions v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076 Le Grand v Criminal Justice Commission [2001] QCA 432 Lieberman v Morris (1944) 69 CLR 69; [1944] HCA 13 McMahon v McMahon (Supreme Court (NSW), Young J, 2 August 1985, unrep) Mulcahy v Weldon [2001] NSWSC 474 Neil v Jacovou [2011] NSWSC 87 Oxley v Oxley [2014] NSWSC 1606 Piper v Mueller (2015) 54 Fam LR 369; [2015] FamCAFC 241 Robinson v Robinson [2019] NSWCA 180 Russell v Quinton [2000] NSWSC 322 Smith v Smith (No 3) (1986) 161 CLR 217; [1986] HCA 36 Texts Cited: Practice Note SC Eq 7 Category: Principal judgment Parties: John Matthew Kelly (Plaintiff) Suzanne Edith Kelly, by her tutor Jane Therese Willis (Defendant) Representation: Counsel: C P Locke (Plaintiff) C Birtles (Defendant) Solicitors: Andrew Dunne Solicitors (Plaintiff) Bull, Son & Schmidt Lawyers (Defendant) File Number(s): 2019/73570 Judgment 1. HIS HONOUR: These proceedings, which have been settled by the parties, and which are in the Family Provision List would not, normally, require considered reasons for judgment. However, in this case, it is necessary to provide written reasons because two of the terms of the Short Minutes of Order which the Court is asked to make, relate to a release, made by the Plaintiff, John Matthew Kelly, of his rights to apply for a family provision order in relation to the estate and notional estate of his mother, Suzanne Edith Kelly, who is the Defendant (now by her tutor) in the proceedings. The approval of the release by the Court is also sought. 2. The Defendant requires a tutor because she suffers from moderately severe dementia and is incapable of managing her financial affairs and of making any health related decisions: see copy report dated 22 March 2019 from Dr Nien Hung La, and the report of Dr Jennifer McMeniman dated 18 March 2019, together being Annexure J to the Plaintiff's affidavit sworn 3 July 2019. The Defendant also suffers from a number of significant age-related illnesses, and she requires full time nursing home care. 3. (Whilst the approval of the Court to the settlement of the proceedings, is required, pursuant to s 76 of the Civil Procedure Act 2005 (NSW), written reasons are not usually given in circumstances where the tutor and her legal advisers, and the Court, have considered the family provision order sought to be made, and are satisfied that the agreement or compromise is in the best interests of the incapable person.) 4. There is no doubt, to the extent the proceedings now involve the release of rights to apply for a family provision order in relation to the estate and notional estate of his mother, who is the Defendant, that an application for the approval of a release may be commenced before the date of her death, she being the person whose estate may be the subject of an order. 5. The settlement of the proceedings before the Court does not involve the Plaintiff giving a release of his rights to make a further claim in respect of the estate of his father, Gregory Thomas Kelly ("the deceased"), out of which estate the Plaintiff sought the family provision order. If it had been, and had the approval of the release by the Court been sought, that aspect, without more, usually, would not require written reasons. Background Facts 1. By Summons filed on 7 March 2019, followed by an amended Summons filed on 18 April 2019, the Plaintiff sought an order for provision under the Succession Act 2006 (NSW) ("the Act") out of the estate of the deceased. 2. The Plaintiff also sought, by the amended Summons, an order, under s 78 and s 79 of the Act, designating property distributed from the estate of the deceased as "notional estate", to the extent necessary to satisfy an order for provision in favour of the Plaintiff, and to the Plaintiff's costs of the proceedings. Other ancillary orders were also sought. 3. The Defendant is the widow of the deceased. She is almost 82 years of age. She and the deceased married in April 1958, and they remained married to each other until the deceased's death on 31 March 2018. It follows that they were married for almost 60 years. 4. There were five children of the marriage, being Jane Therese Willis, who is aged 60 years; Elizabeth Helen Murphy, who is aged 58 years; Gabrielle Mary Bent, who is aged 56 years; Michael Gregory Kelly, who is aged 53 years; and the Plaintiff, who is aged 46 years. 5. In the amended Summons, Jane was named as the tutor for the Defendant in the proceedings. 6. The deceased left a Will dated 15 January 2013, Probate of which Will was granted by this Court to the Defendant, on 13 July 2018. By that Will, the deceased left the whole of his estate to the Defendant absolutely, provided she survived him by 30 days. 7. Although it is irrelevant in the events that happened, had the Defendant not survived him by 30 days, the deceased left his estate as to one-fifth, to be held by a testamentary trust, one of the discretionary objects of which trust is the Plaintiff. The remaining four-fifths of the estate were divided, equally, between the other four children of the deceased, absolutely. 8. In the Inventory of Property attached to, and placed inside, the Probate document, the deceased's estate was disclosed as having an estimated value of $5,491,555. The estate was said to consist of real property at Yennora, in New South Wales ($1,250,000), cash in bank ($264), a car ($4,000) and shares in a private company, Kelsan Investments Pty Limited ("Kelsan") ($4,237,291). (I shall omit the reference to cents in the amounts to which I shall refer. This will explain any apparent mathematical errors.) 9. There was also disclosed, in the Inventory of Property, property owned by the deceased and the Defendant as joint tenants, being real estate at Strathfield ($3,380,000) and moneys in bank ($148,812). Following the death of the deceased, the jointly held property passed, by survivorship, to the Defendant. 10. There was no dispute that the deceased's interest in the jointly held property might, in certain circumstances, form part of the notional estate of the deceased. The value of the deceased's interest in property that might be designated as notional estate (calculated as a one-half share of the jointly held property) is $1,764,406. 11. At the hearing to which I shall refer, the parties agreed that the whole of the estate of the deceased had been distributed to the Defendant: Tcpt, 31 July 2019, p 1(19-31). 12. A family provision order may be made in relation to property that is not part of the deceased's estate, but is designated as "notional estate" of the deceased by an order under Part 3.3 of the Act: s 63(5). In this case, it will be necessary to make a "notional estate order" as there are no undistributed assets, of sufficient value, in the estate of the deceased, for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made: s 88(b) of the Act. 13. From the above, however, it is clear that the value of the deceased's estate at the date of his death was reasonably large, and that the value of property, at the date of hearing, which may be designated as notional estate, is even larger. 14. In an affidavit sworn by the tutor of the Defendant on 30 May 2019, she averred that the Defendant's "current assets and including assets held with another, if any, are valued at $12,835,789…". The assets held by the Defendant "include assets distributed to my mother from my father's estate and assets that were jointly owned by my mother and father". She added that the Defendant's liabilities were $616,097. 15. It follows, if the estimates provided by the tutor proved accurate, that the net value of the Defendant's assets, currently, will be in the order of $12,220,000. The course of the proceedings 1. The Plaintiff's proceedings were first listed for a directions hearing in the Family Provision List on 5 April 2019. On that occasion, it was noted that the named Defendant "…is, or may be, a person under a legal incapacity and that a tutor is to be appointed for the Defendant". A direction was made that the legal representative of any tutor appointed was to inform the Plaintiff's solicitors by 12 April 2019 of her, or his, appointment. The Plaintiff was granted leave to file and serve an amended Summons. The Defendant was directed to serve the affidavits required by Paragraph 9 of Practice Note SC Eq 7. The matter was adjourned until 10 May 2019. 2. On 10 May 2019, by agreement of the parties, the matter was referred to private mediation before the Honourable Mr W V Windeyer AM RFD ED, which mediation was to be held on 14 June 2019. Consequential directions were made in the event that the matter settled at the mediation, and the proceedings were listed, again, on 28 June 2019. 3. On 28 June 2019, the legal representatives of the parties informed the Court that the matter had been settled by the parties. The Court made orders that any original affidavits required to be read, and not already filed, together with the original signed Consent Orders in hard and soft copy reflecting the resolution of the proceedings, together with the settlement checklist, be delivered to my Chambers by 4:00 p.m. on 5 July 2019. The proceedings were then stood over to Friday, 12 July 2019. 4. In accordance with the directions made, there was delivered to my Chambers on 3 July 2019, an affidavit sworn by the Plaintiff on that date and an affidavit of Mr A E Dunne, the Plaintiff's solicitor, stating that he had provided advice to the Plaintiff in regard to the release of his rights. 5. On 4 July 2019, an affidavit of the tutor of the Defendant, going to the settlement of the proceedings on behalf of the Defendant, was delivered to my Chambers. There was also delivered, in hard and soft copy, original Short Minutes of Order, dated 14 June 2019, signed by the legal representative of each of the parties, and the completed settlement checklist. 6. The Short Minutes of Order dated 14 June 2019, provided (with editorial corrections): "1. Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that the Plaintiff receive, by way of provision, out of the notional estate of the late Gregory Thomas Kelly ('the deceased') a lump sum of $215,000. 2. Orders that so much of the proceeds of sale of the property known as and situated at xxx Road, Strathfield NSW as is necessary to satisfy the lump sum, any interest payable thereon and costs be designated as notional estate. 3. Orders that the lump sum be paid on or before 15 July 2019. 4. Orders that no interest is to be paid on the lump sum if it is paid on or before the due date and if not so paid, interest is to be paid on any unpaid part thereof calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from 15 July 2019 until the date of payment in full. 5. Note[s] the agreement of the parties that: a. The financial statements of Kelsan Investments Pty Ltd ('the Company') for the financial years ending 30 June 2015, 30 June 2016, 30 June 2017 or 30 June 2018 do not record any loan owing by the Plaintiff to the Company. b. there is no principal or interest owed by the Plaintiff to the Company. 6. Notes that the Plaintiff agrees to release his right to apply for an order for provision from the estate, or notional estate, of Suzanne Edith Kelly. 7. Orders that the release, by the Plaintiff, of his rights to apply for a family provision order out of the whole, or any part, of the estate or notional estate of Suzanne Edith Kelly, be approved pursuant to s 95 of the Succession Act 2006 (NSW). 8. Orders that the settlement of the claim against Suzanne Edith Kelly, who is a person under legal incapacity, be approved pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW). 9. Notes that the Defendant and her advisers have considered the compromise and believe it to be beneficial to, and in the interests of, Suzanne Edith Kelly. 10. Orders that the Defendant's costs be paid out of the notional estate of the deceased on the indemnity basis. 11. Make no order as to the Plaintiff's costs to the intent that he bear his own costs. 12. Notes the agreement of the parties that: a. The application was made within time. b. The Plaintiff is an eligible person. c. The Plaintiff has served a notice identifying all other eligible persons on the administrator at the time of serving the summons. d. The administrator has filed: i. The administrator's affidavit required by SCR Schedule J; and ii. The affidavit of service of notice of the Plaintiff's claim on any person who is, or may be, an eligible person as well upon any person beneficially entitled to the distributable estate, and any person holding property as a result of a distribution from the estate, as trustee or otherwise. e. The administrator has filed an Appearance." 1. On 5 July 2019, at my request, my Associate sent an email, in the following terms, to the legal representatives of the parties: "Dear All, His Honour has considered the documents in the Court file, and in particular, the Plaintiff's affidavit sworn on 3 July 2019. As the Plaintiff is giving a release in respect of his mother's estate, in circumstances where she is not yet deceased, even though he has seen a copy of her Will made 15 January 2013, he has referred to 'any entitlement that I have under my mother's Will'. The Plaintiff appears to be one of a number of discretionary objects named in Clause 5 of that Will. Also, there is no evidence that he is aware of the nature and value of assets and liabilities of his mother. In the circumstances, these matters should be considered, and a further affidavit of the Plaintiff addressing them should be delivered to his Honour in Chambers. The matter will remain in the List." 1. (The email may have been inaccurate in one respect in that the information about the Defendant's estate had been included in the affidavit of the tutor sworn on 30 May 2019. However, there was no evidence that the Plaintiff had read, and understood, the contents of that affidavit before he agreed to make the release in respect of the Defendant's estate.) 2. On 11 July 2019, an affidavit sworn 8 July 2019 of the Plaintiff was delivered to my Chambers. To this affidavit was annexed a copy of the tutor's affidavit of 30 May 2019, which the Plaintiff acknowledged he had read. The affidavit went on: "4 I have been advised by my solicitor, Mr Andrew Dunne that: (a) I am one of a number of discretionary objects of the testamentary trust established by Clause 5 of the will of Suzanne Edith Kelly dated 15 January 2013; and (b) I may receive a distribution or distributions from the testamentary trust at the discretion of the trustee of the testamentary trust. 5 A true copy of the said will of Suzanne Edith Kelly is Annexure 'I' to the affidavit sworn by me on 3 July 2019." 1. On 12 July 2019, the parties appeared by his, and her, counsel, respectively. Submissions were made by each, following which I referred the matter to Chambers, in order to consider whether I would make the orders sought in Chambers. 2. On 15 July 2019, at my request, my Associate sent the following email to the legal representatives of the parties: "Dear All, His Honour has read the recent affidavit of the Plaintiff and has considered the submissions made in Court on Friday last. Whilst his Honour does not doubt what was put to him by Mr Locke from the Bar table, bearing in mind s 95 of the Act, the size of the estate of the Plaintiff's mother, the terms of his mother's Will and the other evidence, his Honour considers that the matter should be dealt with in Court, rather than in Chambers, with the Plaintiff being present. Alternatively, if the parties agree, a confidential affidavit from the Plaintiff's solicitor going to the advice given to the Plaintiff and the instructions provided by him, can be filed, read by his Honour, and placed in a sealed envelope to be opened only with the leave of a Judge. His Honour will then consider whether to approve the release. Please discuss these alternatives and inform his Honour as to the course the parties would prefer to follow. Please respond by 4:00 p.m. tomorrow afternoon." 1. There followed a series of emails between the legal representatives relating to a suitable date for the matter to be re-listed. Late on 16 July 2019, by agreement of the parties, the matter was listed, for the hearing of the approval of the release application, at 2:00 p.m. on 31 July 2019. The matter proceeded to be heard on that date with the Plaintiff present in Court. The Plaintiff's Evidence in the Proceedings 1. I have taken the following facts from the Plaintiff's affidavit sworn on 1 March 2019: 1. He was born in March 1973 and is currently 46 years old. 2. He states that "the deceased treated me well and we had a good relationship. I lived in the same house as the deceased until I was about 30 years of age". 3. Subsequently, he spoke to the deceased frequently and saw him, on average, twice a week. 4. Between 2016 and 2018, a period during which the Plaintiff could not work, he visited the deceased twice a week at the Strathfield property, collected rent from "his factory", and drove the deceased to the farm at Moss Vale, as required. 5. He lives alone. He has no wife, partner or children. 6. His health is "only fair". He experiences a number of medical conditions. He suffered a heart attack in 2016 and a stent was surgically inserted. 7. He needs to keep working in order to meet mortgage repayments and living expenses. He owns a property ($900,000) which is subject to a mortgage debt of $70,000. He says that his home requires a lot of maintenance and repairs. 8. He earns $980 net, per week, plus superannuation. He estimates his weekly expenditure to be about $949. 9. He has a current bank balance ($2,700), superannuation (about $4,000) and a car ($8,000). He has a number of small debts (in total, being $1,864). 10. He says that he has "no real prospects of improving my present work situation and will be in extreme financial difficulty if I lose, or can't continue, in my present job". 11. He says his need is for a capital sum to pay down the outstanding balance of his mortgage debt, for "future medical and hospital expenses, including possible knee replacements", to "assist with my living expenses, to be able to take some holidays, to buy clothing and for entertainment, and for future contingencies". 1. In his affidavit of 3 July 2019, the Plaintiff stated that his personal and financial circumstances remained essentially unchanged. He also revealed that a sequestration order had been made against him in June 2011 and that he had been discharged from bankruptcy on 3 August 2014. 2. The Plaintiff also disclosed that he had entered into a Deed of Loan on 19 April 2002, with Kelsan, pursuant to which he had borrowed $200,000, a copy of which Deed of Loan was annexed. A copy of another Deed of Acknowledgement, dated 16 November 2015, pursuant to which he acknowledged an additional loan of $30,000 borrowed from Kelsan on 23 October 2007, was also annexed to this affidavit. 3. Annexed also to this affidavit, was a copy of the Mortgage, dated 19 April 2002, in which the Plaintiff was named as the mortgagor and Kelsan was named as the mortgagee. 4. There is other documentation, being annexure "E" to this affidavit, which states that "[a] review of the Kelsan 2010 financial accounts show Matthew John Kelly to be a debtor of the company for unpaid secured loans of $442,223.12 plus payments made to support his collapsing financial position". 5. There was also annexed to the Plaintiff's affidavit, a copy of the Will, made 15 January 2013, of the Defendant. In that Will, relevantly, the Defendant appointed her daughters, Elizabeth and Jane, as her executors. 6. Clause 4 of the Defendant's Will, relevantly, provides: "4. I give the residue of my estate to my executors: (a) to pay all debts, funeral and testamentary expenses and any death, estate or succession duties; and (b) to hold an amount equivalent to one fifth of my estate upon the trust set out in Clause 5; (c) (i) Subject to subparagraph (ii), to divide the rest and residue of my estate equally among those of MICHAEL GREGORY KELLY, JANE THERESE WILLIS, GABRIELLE MARY BENT and ELIZABETH HELEN MURPHY who survive me; …" 1. Clause 5 of the Defendant's Will, relevantly, provides for the creation of a testamentary discretionary trust in which the Plaintiff is identified as a discretionary object. The "Distribution Date" is defined to mean "the Vesting Date or such earlier date as my Trustee may determine as the Distribution Date". The "Vesting Date" is defined to mean "the date 70 years from the date of my death or such earlier date prescribed by law as being the last day of the perpetuity period for the purposes of the rule against perpetuities". 2. The other discretionary objects, identified in Clause 5.1 of the Will of the deceased, included any child, or spouse of the Plaintiff; where a trustee of the of the Trust is a company or companies, each trustee in its corporate capacity; where a trustee is a natural person, the trustee in their personal capacity; any company incorporated, in any country, in which any of the beneficiaries are a beneficiary or object, whether present contingent or discretionary (subject to some conditions that I do not repeat); and any company or other body corporate or unincorporated nominated by the trustees (again, subject to some conditions which do not need to be repeated in these reasons.) 3. The trustees of the testamentary trust created by the Defendant's Will are the executors, Elizabeth and Jane, who are given the following powers: "5.2 I GIVE the Trust Fund to my Trustees to hold upon the following Trusts: (a) my Trustees may in their discretion accumulate the whole or such part of the income of the Trust Fund in any Financial Year as is permissible by law and income accumulated under this paragraph will be added to and form part of the capital of the Trust Fund; (b) subject to clause 5.2(a), my Trustees may until the Distribution Date pay, apply or set aside the income of the Trust Fund from Financial Year to Financial Year to or for all or such one or more of the Beneficiaries exclusive of the other or others of them in such shares and proportions as my Trustees may prior to the end of the last day of that Financial Year in their absolute discretion determine; … (e) my Trustees may from time to time and at any time prior to the Distribution Date distribute any part of the capital of the Trust Fund to all or such one or more of the Beneficiaries exclusive of the other or others in such shares or proportions as my Trustees in their absolute discretion determine;" 1. It was not suggested that the Defendant had the capacity to revoke this Will, or to make another Will. 2. During the course of the hearing, I raised a number of matters with counsel, following which, Mr Locke of counsel, who again appeared for the Plaintiff, called the Plaintiff to give oral evidence. Mr Birtles, counsel for the Defendant, did not ask the Plaintiff any questions. 3. In answers to questions, it became clear that the Plaintiff, with all due respect to him, did not fully understand all of the advice that he had been given, or comprehend the effect of the release being approved by the Court. This is demonstrated by the following passages of his evidence (Tcpt, 31 July 2019, p 10(18) – p 13(10)): "Q. And do you understand that that's what the proceedings are about? A. Yes, I do. Q. Could you tell his Honour, in your own words, what advice you were given, legal advice you were given in relation to whether or not this release should be sought? A. I was given the advice that I had made the claim against my father's provision and that I was going to give up my rights for a claim against my mother's family provision, but that I was still entitled to one‑fifth of my mother's estate that was to go into a trust account. Q. And what was your understanding of anything you may get out of that trust? A. It was that, it was under the discretion of the trustees and that money may be paid or may not be paid depending on circumstance. That was what I had been advised. Q. And you understand that, depending on what happens in the future, that right, if the Court was to approve a release of that right, could turn out to have been a valuable right you have agreed to have waived? A. I understand that that is a valuable right and I realise that that I have waived that right, that is something that I waived in the mediation. I agreed to that because I was made aware of the fact that, okay, yes, I am giving up the right to a claim under the Family Provision Act on my mother's, but that I was still entitled to a one‑fifth claim to the estate, and that I was agreeable with. Q. Again, just to clarify? A. Because the reason why I was agreeable to it was because I was made aware that my father, in his will, had said that any money would go into trust. So under his will, and the co‑joint will, it was a provision that was going to be something that had to be addressed eventually. Q. When you again made reference to the one‑fifth of your mother's estate in trust‑‑ A. Yes. Q. ‑‑it is the case, as you said earlier, you understand that you may never get some of that money, you may get some of it, you not‑‑ A. I'm aware that's a risk that is the case, but I'm also prepared to challenge the fact that the money goes into a trust and I'm also prepared to challenge whatever portion I'm given or not given as to the estate. Q. Right. So you want to reserve your rights about that and take your chances? A. Yes. … HIS HONOUR Q. Mr Kelly, I am having a little bit of a difficulty understanding some of the evidence that you have just given. A. Yes. Q. First of all, you raised the fact of your father's will. A. Yes. Q. And I think you have said that you understood that, effectively, your father's will and your mother's will contain the same clause relating to part of the estate of the respective parent going into a trust? A. Yes. Q. Of course, in relation to your father's estate you challenged the will by making the claim which you have settled, do you understand that? A. Yes, due to health reasons and financial circumstances. Q. Yes. A. Yes. Q. And you understand that or do you understand that ‑ assuming that your mother does not change the will‑‑ A. Yes. Q. ‑‑and it seems more likely than not that she will be unable to do so‑‑ A. Yes, yes, that's right, yep. Q. ‑‑her will as presently framed‑‑ A. Yes. Q. ‑‑does not make any direct provision for you, do you understand that? There is no amount in her will that comes directly to you under the terms of her will? A. As I'm aware that would be the same for my four other siblings. Q. Well, it is not quite the same in relation to your four other siblings. It is not the same. A. I was under the understanding that it was a one‑fifth share for me as well as a one‑fifth share for my four other siblings. Q. It's not? A. Theirs they receive direct, and mine 20% went into a trust account. Q. Well, that's the difference, they get their share direct? A. They get theirs direct. Q. But you do not. A. And I'm aware that mine goes into trust and that is something that I mentioned previously that I would object to because of the fact that my father changed his will in the last four years prior to his death and that for 20 or 30 years the will that he did have contained me in the will without the money going into trust. So first of all that would be something that I would be challenging. Q. But if I approve the release, you can't challenge it. That's the whole point. If I approve the release you cannot challenge your mother's will in the future, do you understand that? A. I do. I do understand what you are saying now, yeah. I wasn't aware that I wasn't able to challenge the fact that the money's going into trust. Q. No, you can't. A. Okay. Yeah, actually I do, I do think that I was advised of that by my solicitor, actually." 1. His obvious lack of full appreciation of the effect of the approval of the release must have been apparent to the legal representatives of both parties, as, upon the conclusion of the Plaintiff's evidence, the Court was asked by counsel, to adjourn the proceedings, for a short time, so that they could discuss the way forward. 2. Upon my return to Court a short time later, I was informed that the release the Defendant then sought, and the release that the Plaintiff was then prepared to make, was a release of rights limited to the part of the Defendant's estate that was left in her Will to the Plaintiff's siblings (or relevant substitute beneficiaries) in Clause 4(c) of the Will. This means that one-fifth of the Defendant's estate, which passes to the testamentary trust of which the Plaintiff is one discretionary object, would be available to satisfy any claim made by the Plaintiff for provision out of the Defendant's estate upon her death, and any costs ordered to be paid out of her estate. 3. On the present evidence, the value of that one-fifth share of the Defendant's estate (estimated to be about $2,440,000) would be sufficient to satisfy any claim for provision the Court determined, at that time, should be made for the Plaintiff, and any order for costs. 4. The matter was then adjourned so that an amended form of signed orders could be prepared for the Court's consideration. 5. The legal representatives forwarded the following orders to my Chambers on 5 August 2019. The orders broadly accorded with what had been discussed in Court. The Court was also informed that the sale of the property at Strathfield referred to in the orders had been completed after the mediation. 6. Following being told, in Court, of the proposed amendment to the form of orders, so far as it related to the release being made by the Plaintiff, I informed the parties that, subject to receipt of the final orders, and a consideration of the form of those orders, in all likelihood, I would approve the limited release and would publish my reasons. These are those reasons. The Act 1. Before referring specifically to s 95 and s 96 of the Act, it is convenient to refer to s 59 of the Act, which provides: "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of 'eligible person' in section 57--having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. Note: Property that may be the subject of a family provision order is set out in Division 3. This Part applies to property, including property that is designated as notional estate (see section 73). Part 3.3 sets out property that may be designated as part of the notional estate of a deceased person for the purpose of making a family provision order. (3) The Court may make a family provision order in favour of an eligible person in whose favour a family provision order has previously been made in relation to the same estate only if: (a) the Court is satisfied that there has been a substantial detrimental change in the eligible person's circumstances since a family provision order was last made in favour of the person, or (b) at the time that a family provision order was last made in favour of the eligible person: (i) the evidence about the nature and extent of the deceased person's estate (including any property that was, or could have been, designated as notional estate of the deceased person) did not reveal the existence of certain property ('the undisclosed property'), and (ii) the Court would have considered the deceased person's estate (including any property that was, or could have been, designated as notional estate of the deceased person) to be substantially greater in value if the evidence had revealed the existence of the undisclosed property, and (iii) the Court would not have made the previous family provision order if the evidence had revealed the existence of the undisclosed property. (4) The Court may make a family provision order in favour of an eligible person whose application for a family provision order in relation to the same estate was previously refused only if, at the time of refusal, there existed all the circumstances regarding undisclosed property described in subsection (3) (b)." 1. Section 3 of the Act, provides that a "family provision order" means "an order made by the Court under Chapter 3 in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement in life of an eligible person". "Notional estate" of a deceased person is defined as meaning "property designated by a notional estate order as notional estate of the deceased person". A "notional estate order" means an order made by the Court under Chapter 3 designating property specified in the order as notional estate of a deceased person. 2. Section 95 of the Act provides: "(1) A release by a person of the person's rights to apply for a family provision order has effect only if it has been approved by the Court and to the extent that the approval has not been revoked by the Court. (2) Proceedings for the approval by the Court of a release of a person's rights to apply for a family provision order may be commenced before or after the date of the death of the person whose estate may be the subject of the order. (3) The Court may approve of a release in relation to the whole or any part of the estate or notional estate of a person. (4) In determining an application for approval of a release, the Court is to take into account all the circumstances of the case, including whether: (a) it is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release, and (b) it is or was, at that time, prudent for the releasing party to make the release, and (c) the provisions of any agreement to make the release are or were, at that time, fair and reasonable, and (d) the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice. (5) In this section: 'release of rights to apply for a family provision order' means a release of such rights, if any, as a person has to apply for a family provision order, and includes a reference to: (a) an instrument executed by the person that would be effective as a release of those rights if approved by the Court under this section, and (b) an agreement to execute such an instrument." 1. (More often than not, the Court is concerned with an executed instrument containing the release, rather than with an agreement to execute such an instrument that would be effective as a release of those rights if approved by the Court under s 95.) 2. Section 96 of the Act provides: "(1) The Court may not revoke an approval of a release given by it under section 95, except as provided by this section. (2) The Court may revoke an approval if it is satisfied: (a) that its approval was obtained by fraud, or (b) that the release was obtained by fraud or undue influence. (3) The Court may also revoke an approval, either wholly or partially in respect of specified property, if it is satisfied that all persons who would be, in the Court's opinion, sufficiently affected by the revocation consent to the revocation." 1. It can be seen that "a change of circumstances does not provide a basis under s 96 of the Succession Act for revocation of the approval of a release made under s 95 in relation to an existing or a prospective family provision claim": Robinson v Robinson [2019] NSWCA 180, per Basten JA, at [5]. A release of rights 1. Although s 95 does not differentiate between different releases of rights to apply for a family provision order, rather referring only to a "release of such rights, if any, as a person has to apply for a family provision order", different considerations may be relevant, in the Court's determination of whether to approve a release, depending upon the nature of the release of rights being considered, and whether the release is being made before, or after, the date of the death of the person whose estate may be the subject of the order. 2. As has been stated, a release of rights may be made before any proceedings for a family provision order are commenced, but after the death of the person whose estate may be the subject of such an order. Usually, in such a case, the release of rights would be in respect of making a claim for any family provision order in favour of the eligible person, the releasor, out of the estate of the deceased person, whose estate may be the subject of a family provision order. Usually, the plaintiff receives provision out of the deceased's estate, other than by an order of the Court, and agrees to give a release of rights in respect of making a further claim for a family provision order made in relation to the estate of the deceased. 3. Alternatively, the release of rights may be made in proceedings brought seeking a family provision order, after the death of the person whose estate may be the subject of such an order, in circumstances where the plaintiff, as part of a settlement of those proceedings, receives provision out of the deceased's estate and agrees to give a release of rights in respect of making a further claim for a family provision order made in relation to the estate of the deceased: s 59(3) of the Act. 4. The two types of release of rights referred to above, were considered by Brereton J (as his Honour then was) in Anthony John Clifford v Mark Ronald Joseph Clifford [2015] NSWSC 2136. His Honour wrote, at [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." 1. Another alternative, as referred to by Brereton J, would be the release of rights made in circumstances where the plaintiff's application for a family provision order in relation to the same estate was previously refused and he, or she, has threatened fresh proceedings: s 59(4) of the Act. Similarly, in that type of case, it would be necessary to focus attention, particularly in the evidence of the person giving the release, on just what is being released. The releasor would need to understand that what is being released is the right to make an application in the limited and special circumstances referred to in s 59(4) of the Act. 2. In each of the alternatives referred to above, the release of rights is made by the eligible person after the date of the death of the person whose estate may be the subject of the order. 3. As stated earlier, a release of rights may be made by an eligible person before the date of the death of the person whose estate may be the subject of the order. Such a release is often called an "inter vivos release". 4. The most common example of this type of release of rights is where the parties, each of whom provides a release of rights in respect of the estate of the other, are former parties to a marriage, or former domestic partners, and have reached a settlement with respect to their property, or the property of either of them, altering the interests of one, or both, in that property under the Family Law Act 1975 (Cth), and where orders under the Family Law Act have been, or are to be, made. Usually, they wish to complete the final severance of their financial relationship by discharging the estate of each from any potential claim for a family provision order by the other. 5. In such a case, as was written by Brereton J in Cook, Michael Knox Norton, by his tutor Richard D'Apice v Michael James Harris [2015] NSWSC 2147, at [5]-[6]: "The circumstance that the Family Court has, by making the consent order, effectively indicated that it considers it an appropriate resolution of the financial disputes between the parties relieves me of the necessity to consider in detail the respective roles, contributions and needs of the parties which might otherwise have fallen for consideration. That said, the evidence tends to suggest that the defendant's contribution, though not to be disregarded, was a distinctly minority one in terms of the whole of the plaintiff's substantial estate. Where an inter vivos release of this kind is proposed in the context of a settlement of inter vivos financial proceedings between domestic partners, it is almost always appropriate to approve the release if the inter vivos settlement does not appear an improvident one. That is because it is generally desirable that when relationships break down, the financial obligations arising from them can be finally and forever resolved, leaving the parties to live the rest of their lives unshackled by obligations arising out of past relationships." 1. A further example of an inter vivos release is where persons have made a pre-nuptial agreement in which mutual releases of rights have been made but no application is made, at that time, for approval of the releases. A question arises, later, whether the release of rights should be approved after death of one of the parties to the pre-nuptial agreement. An example of such a case is Russell v Quinton [2000] NSWSC 322. 2. Another recent example is where, in proceedings seeking possession of a property, the Court is asked to approve a release of rights made by the defendant (an adult child) in circumstances where it was agreed that $30,000 would be paid to him as an advancement on his entitlement under the Will of the plaintiff (the father of the defendant), and where, in return for the advancement, the defendant has agreed to release any rights that he may have to make a claim under the Succession Act in relation to the plaintiff's estate: Kannisto v Kannisto (No. 2) [2019] NSWSC 950. Also see, Kazzi v Kazzi [2018] NSWSC 1835. 3. The present case, whilst it involves an inter vivos release, is very different from the above examples. Here, an eligible person is making a release of rights in relation to the estate and notional estate of his mother, before the date of her death, as part of the settlement of existing family provision proceedings in which an order for provision is sought to be made in respect of the eligible person's deceased father. 4. In any of the examples referred to above, a release of rights to apply for a family provision order may be in relation to the whole, or any part, of the estate or notional estate of a person. Some general principles 1. It is possible to state some general principles that apply to s 95 of the Act. I make clear that I do not intend what I shall describe as "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction of the Court in relation to the approval of a release under the Act should be unduly confined, or that the discretion should be constrained, by statements of general principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power given to the Court, which is left largely unfettered. 2. The general principles that I consider to be relevant under s 95 of the Act are: 1. The power of the Court to approve a release under s 95 is incidental to the exercise of the principal jurisdiction of the Court under s 59 to order provision out of the estate or notional estate of a person. 2. The authority given to the Court to approve a release qualifies the old principle that contracting out of the statutory benefits is prohibited: Lieberman v Morris (1944) 69 CLR 69; [1944] HCA 13. Also see Smith v Smith (No 3) (1986) 161 CLR 217; [1986] HCA 36, per Mason, Brennan and Deane JJ, who pointed out, at 250, that the effect of s 31 of the Family Provision Act 1982 (NSW), the predecessor of s 95 of the Act, was to qualify the pre-existing prohibition against contracting out of certain statutory benefits, and that s 31 laid down a precondition to rendering effective an agreement to contract out. 3. The Act, so far as it relates to family provision, generally, operates only after the death of a person whose estate (actual or notional) is sought to be made liable for the maintenance, education or advancement in life of an "eligible person", an expression which includes a child of the deceased person: s 57(1)(c). An exception, however, relates to an application for the approval of a release commenced before the date of the death of the person whose estate or notional estate may be the subject of the order. 4. A release has effect only if it has been approved by the Court and to the extent that the approval has not been revoked by the court. If the Court approves the release, and does not subsequently revoke its approval, no application for provision out of the estate or notional estate (or the part thereof that has been released) of the person whose estate is released can be made thereafter. If the Supreme Court refused to approve of the release, the only consequence would be that a potential barrier to the making of an application for provision out of the estate or notional estate of a person, after his, or her, death, would be removed. 5. Gibbs CJ, Wilson and Dawson JJ in Smith v Smith (No 3) at 240‑241, construed s 31 of the Family Provision Act, which was in similar terms to s 95 of the Act, as a section making the efficacy of an agreement depend upon approval by the Supreme Court of New South Wales and if, absent a seal or stamp, "the agreement is not effective". 6. Assuming that there is evidence of the matters in s 95(4), there is no presumptive right to an order, but there remains a general discretion, vested in the Court, to make an order approving the release. The application to approve a release of rights is not a mere formality. Importantly, an order approving the release does not follow just because all the parties have agreed that such an order should be made: Boyter v Lepre; Estate of Umberto Lepre [2001] NSWSC 127. In McMahon v McMahon (Supreme Court (NSW), Young J, 2 August 1985, unrep), Young J, put it this way: "Although I am not aware of any important reported decision on s 31, I am aware that on at least two occasions since the Family Provision Act came into force judges in this division have made an order under s 31 as an adjunct to approving a settlement of proceedings brought in a family property dispute. The view that has been taken is that [the members of] a family come to an all-up settlement and once and for all release each other from liabilities and wish to go their separate ways and they are all sui juris and advised by competent counsel and solicitor, then it is in the public interest that the disputes between them be put to an end forever by also releasing the rights under s 31 of the Family Provision Act. A prodigal son who takes his inheritance and also releases his rights under s 31 with the approval of the Court can thereafter not expect any fatted calf upon his return to the family property. In my view, the attitude previously taken is the correct one, although parties should not automatically assume when they have settled a family dispute that the Court will make an order under s 31...". 1. As stated in s 95, in determining whether to approve the release, the court is required to take into account all the circumstances of the case, including those matters referred to in s 95(4)(a) to (d). Some of the matters referred to will be considered by particular reference to the party granting the release, namely what is referred to in s 95 (a), (b) and (d), but s 95(c) will be considered by reference not only to that party but also by reference to the other party or parties. 2. The parties should put before the Court sufficient material for the Court to consider all the circumstances of the case. Those circumstances would include the events leading to the giving of the release, where any agreement was signed, for example, whether it was at the conclusion of a formal mediation (within the contemplation of s 98 of the Act) and, in particular, evidence that there had been no coercion. Another circumstance would be the value of the estate, or part of the estate, or notional estate of the person whose estate may be the subject of the order, at the date of the giving the release. 3. The Court's enquiry is not limited to the circumstances as they existed when the agreement for the release was signed: Neil v Jacovou [2011] NSWSC 87; Russell v Quinton; Mulcahy v Weldon [2001] NSWSC 474; Dark v Dark [2016] NSWSC 1223. 4. A relevant consideration, in all cases in which there is approval of a release sought, is that litigation under the Act takes place in an adversarial context, in which the active parties to the litigation are usually expected to be the best judge of what is in his, or her, own interests: Bartlett v Coomber [2008] NSWCA 100, per Mason P, at [57]. 5. Yet, one of the express considerations referred to is whether it is, at the date of the giving of the release, prudent for the releasing party to make the release. A prudent person is someone who acts with care and thought for the future, in particular in exercising care and good judgment in relation to his or her own interests: Russell v Quinton, at [70]. In Piper v Mueller (2015) 54 Fam LR 369, at 381; [2015] FamCAFC 241, at [52], Ryan and Aldridge JJ wrote (albeit in another context): "…in determining what is 'prudent', the court looks to the future and the interests of the person in taking, or not taking, the proposed course. In other words, whether a particular course is prudent involves consideration of the advantages and disadvantages of the proposed course. Similarly, an assessment of whether the provisions of an agreement were fair and reasonable, necessarily involves a consideration of the advantages and disadvantages of those provisions." Murphy J wrote, at [91]: "Ryan and Aldridge JJ arrive at a similar conclusion by reference, in particular, to analogous provisions of a piece of State legislation (albeit that that legislation, in stark contrast to s 90UJ, and the statutory scheme applicable to financial agreements, involves court supervision and the exercise of a judicial discretion in relation to it). A similar point might be reached by, for example, reference to dictionary definitions of 'prudent' which include 'judicious or wisely cautious in practical affairs; discreet or circumspect'; or 'characterized or proceeding with care in following the most politic and profitable course; … circumspect,' noting in particular that the latter word is defined, in turn, to mean '… cautious, wary, taking everything into account.'" 1. Another specific consideration, whether the provisions of any agreement to make the release are fair and reasonable, is an evaluative decision. In Neil v Jacovou, Slattery J wrote, at [84]: "Fairness and reasonableness must be assessed over time, 'having regard to all the circumstances': Family Provision Act, s 31(5). When determining whether or not to approve the release, the court can also take into account the value of the rights that in these reasons the court finds that [the plaintiff] would have but for the operation of the release as well as the fact that she made the agreement for the release. As Bryson J (as his Honour then was) said in Mulcahy v Weldon [2001] NSWSC 474 at [10], '... the question whether the court should make an order under [Family Provision Act] s 31 would lead to a consideration of the same matters as are raised by the plaintiff's claim for further provision. If when all the circumstances are considered, including the contractual arrangement for a release, the right outcome is that the plaintiff should have further provision, approval under s 31 would not be forthcoming. The fact that the arrangement was made, even though no approval under s 31 had been obtained, has a bearing on whether provision ought be ordered.' The court concludes under question 9 below that further provision should be made for [the plaintiff] despite her execution of the pre-nuptial agreement. The quantum of the rights the release neutralised is one measure of its unfairness." 1. Whether the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice, may require a consideration of the independent advice that has been given, although all that is required by the sub-section is whether independent advice was given, and whether due consideration was given to that advice. The sub-section does not mandate that the Court cannot approve a release unless the releasing party has obtained independent advice. Nor does it require the Court to determine the content of the independent advice given. However, if there were evidence of the advice given, and no challenge was made to that evidence, the Court could consider the correctness, or otherwise, of that advice, as part of all the circumstances of the case: Russell v Quinton at [65]-[66]. In Kamil Faltas v Hong Peng; Tammy Westbury v Hong Peng; Bianca Faltas v Hong Peng; Emile Faltas v Hong Peng [2014] NSWSC 1922, Brereton J wrote, at [17]: "Section 95(4)(d) requires the Court to take into account whether the releasing party has taken independent advice and, if so, has given due consideration to that advice. It does not mandate that the Court cannot approve a release unless the releasing party has taken independent advice. In order to be satisfied that Bianca understood what she was releasing and the terms of the settlement as a whole and had made an informed decision about it, I required that some oral evidence be adduced from her for that purpose. Having heard that evidence, I am so satisfied, and while I note and take into account that she has not taken independent advice, in all the circumstances I do not consider that that factor tells significantly against approving the release that she proposes to give." Approval under s 76 Civil Procedure Act 1. It is clear that, although the wording of s 76 of the Civil Procedure Act gives an unfettered discretion, there is a wealth of authority that confirms that the Court should only approve the compromise if it is in the best interests of the person under a legal incapacity, or if it is beneficial to him or her: see, for example, Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388, which was applied by Allsop P (as his Honour then was) in Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298, at [2]. 2. While the Court will rely on the evidence before it advanced by the parties, including the view of the tutor and her, or his, legal advisers as to the appropriateness of the settlement, ultimately, the Court exercises its own independent judgment and considers for itself whether the settlement is beneficial to the person under the legal incapacity. Dealing with the approvals in Chambers 1. Section 11 of the Supreme Court Act 1970 (NSW) provides: "11 Distinction between court and chambers (1) The distinction between court and chambers is abolished. (2) The business of the Court, whether conducted in court or otherwise, shall be taken to be conducted in court." 1. Under s 11, there is no restriction on where the Supreme Court may exercise its powers, apart possibly from constitutional limits, not relevant in this case, requiring there to be a nexus with New South Wales. This is apparent from s 11(2) of the Supreme Court Act, which, by the use of the phrase "or otherwise", contemplates no restriction on where the business of the Court might be conducted: King Investment Solutions v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076, per Campbell J, at [147]. 2. Arguably, by virtue of s 11(1), a reference to a matter being dealt with "in chambers" is now an anachronism. In any event, dealing with a matter "in chambers" does not mean that the proceedings are dealt with in secret. It means no more than a less formal procedure may be adopted by the Court in matters where there is no opposition to the Court making the orders sought: Le Grand v Criminal Justice Commission [2001] QCA 432, per White J (with whom Davies and Williams JJA agreed), at [19]. (Of course, that case was determined by reference to the Supreme Court Act 1995 (Qld). Nonetheless, the principle to which I have referred remains applicable.) Otherwise, the business of the Court is conducted in court. 3. In the Family Provision List, the Court, frequently, makes orders in chambers. In compliance with s 56 of the Civil Procedure Act, which requires the Court to give effect to the overriding purpose of the Act and of rules of court, in their application to civil proceedings, to facilitate the just, quick and cheap resolution of the real issues in the proceedings, and also in cases where the Court wishes to save parties the expense of an additional appearance by their legal representatives, orders, such as orders finally resolving the proceedings, or other procedural orders, are regularly made in chambers. 4. Dealing with the matter in chambers still requires the documents in the Court file, where relevant, to be read, and the formal notation of the documents that have been read in the Court's record of proceedings. The settlement checklist, which the legal representatives are now required to consider, complete, and sign, in family provision matters that are compromised where an order under the Act is to be made, assists in the task of identifying the documents to be read and considered together with other relevant matters (such as whether the consent of the beneficiary who is bearing the burden of provision made in favour of the Plaintiff has been obtained). 5. Of course, as in this case, the Court may, if thought appropriate, deal with the matter in Court, and then, if necessary, refer it to chambers, to enable the orders to be made. Determination 1. In this case, I have no doubt that the settlement of the claim for a family provision order out of the deceased's estate, made by the Plaintiff, although it will reduce the value of the property of the Defendant, is a settlement that is in the best interests of the Defendant. Nothing more needs to be said about this aspect of the settlement of the proceedings. 2. Then, as earlier noted, there can be no doubt that the Court has jurisdiction to approve the release of his rights, as amended, made by the Plaintiff, in respect of the Defendant's estate and notional estate. 3. In determining the application for approval of the release, as amended, I have taken into account all of the circumstances of the case, including the four matters specifically referred to in s 95(4)(d) of the Act. Although I would not have approved the initial release made by the Plaintiff, as a result of his evidence, it seems to me that, now, the approval of the release, in its amended form, ought to be given. 4. In this regard, and amongst other things, I consider that it is, at the time the agreement to make the release is made, to the advantage, financially or otherwise, of the Plaintiff to make the release. He has confirmed that he has received provision from the estate of the deceased. The amount of the provision that he receives, in hand, will be $170,000, after payment of his costs, calculated on the indemnity basis. This amount will enable him to repay his mortgage debt ($70,000), which will correspondingly result in an increase in his available income, and leave about $100,000 for exigencies of life. Whilst employed, his income is sufficient to meet his expenditure. 5. The Plaintiff has confirmed, by counsel, that another issue that the existence of a possible debt owed by him to Kelsan, has "been put to rest" by that company acknowledging that there is no debt: Tcpt, 31 July 2019, p 2(2-16). His financial security, undoubtedly, is improved in the circumstances. 6. It is to the Plaintiff's advantage otherwise, because it brings to an end this somewhat unfortunate dispute between him and his mother, and indirectly, his siblings, and enables all of them, hopefully, to resurrect their familial relationship. It also provides the certainty of a known outcome in the proceedings relating to his claim for provision out of the deceased's estate. 7. By resolving the proceedings, and granting the release, he should be able to maintain a relationship with his siblings without each of those siblings being concerned that what is currently provided for her, and him, respectively, in the Will of the Defendant may be affected by a family provision order on the death of the Defendant. 8. Furthermore, in the event there is any detrimental change to the Plaintiff's financial circumstances, upon the death of the Defendant, he will be able to make a claim for a family provision order out of her estate, if he chooses to, albeit the part of her estate out of which provision will be able to be made will be limited to the 20 per cent (or one-fifth) share that has not been provided to each of his siblings. In other words, his entitlement to make a claim survives this settlement and the approval of the release. 9. The Plaintiff believes it is prudent to make the release in its amended form. For similar reasons, I also consider that it is, currently, prudent for the Plaintiff to make the release as amended. The current value of the share of the Defendant's estate that should be available to satisfy any family provision order, or any order as to costs, which the Court is then of the opinion should be made, appears to be more than enough. 10. The Plaintiff also believes the terms of the release, in its amended form are fair and reasonable, in that only part (albeit 80 per cent, or a four-fifths share) of the Defendant's estate is being released. As stated, the balance of the estate, on present indications, appears to be sufficient to satisfy any order for provision and for costs that might be made in favour of the Plaintiff out of the Defendant's estate. 11. The Plaintiff has taken independent advice in relation to the release and says that he has given due consideration to that advice. This is clear by reason of the amendment to the release, by limiting it to the one-fifth share of the Defendant's estate that is to be paid into the testamentary trust. In this regard, the Plaintiff has been represented by experienced counsel and solicitor, as has the Defendant. Furthermore, the Defendant's tutor supports the application in its amended form. 12. In all the circumstances, I have made the following orders and notations: 1. Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that the Plaintiff receive, by way of provision, out of the notional estate of Gregory Thomas Kelly ("the deceased"), a lump sum of $215,000. 2. Orders that the lump sum be paid within 7 days of the date of the making of these orders. 3. Orders that no interest is to be paid on the lump sum if it is paid within 7 days of the date of the making of these orders and if not so paid, interest is to be paid on any unpaid part thereof calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from the 8th day after the date of the making of these orders until paid in full. 4. Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff. 5. Orders that such of the following property be designated as notional estate as is necessary to satisfy the lump sum, any costs interest thereon, and any unpaid costs of the Defendant: 1. $215,000 held for the estate of the Defendant in the Bull Son & Schmidt Trust Account with National Australia Bank Limited, BSB 082 xxx Account no 04 976 xxx. 2. $20,000 held by the Defendant in her bank account with Westpac, BSB 732-xxx Account Number 68xxx. 1. Notes the agreement of the parties that: 1. The financial statements of Kelsan Investments Pty Ltd ("the Company") for the financial years ending 30 June 2015, 30 June 2016, 30 June 2017 or 30 June 2018 do not record any loan owing by the Plaintiff to the Company. 2. There is no principal or interest owed by the Plaintiff to the Company. 1. Notes that the Plaintiff releases his right to apply for an order for provision from that part of the estate of the Defendant given to his siblings, Jane Therese Willis, Gabrielle Mary Bent, Elizabeth Helen Murphy, and Michael Gregory Kelly (or to any substitute beneficiaries), by Clause 4(c) of the Defendant's Will dated 15 January 2013, but preserving his right to make a claim for a family provision order out of the one-fifth part of her estate to be settled on the trust pursuant to Clause 5 of that Will. 2. Orders that the release by the Plaintiff, of his rights to apply for a family provision order out of that part of the Defendant's estate as is referred to in Paragraph (7) above, be approved pursuant to s 95 of the Succession Act 2006 (NSW). 3. Orders that the settlement of the claim against Suzanne Edith Kelly, who is a person under legal incapacity, be approved pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW). 4. Notes that the tutor of the Defendant and her legal advisers have considered the compromise and believe it to be beneficial to, and in the interests of, the Defendant. 5. Makes no order as to the Plaintiff's costs, to the intent that he will bear his own costs of the proceedings. 6. Orders that the Defendant's costs, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the notional estate of the deceased. 7. Notes the agreement of the parties that: 1. The application was made within time. 2. The Plaintiff is an eligible person. 3. The Plaintiff has served a notice identifying all other eligible persons on the administrator at the time of serving the Summons. 4. The administrator has filed: 1. The administrator's affidavit required by SCR Schedule J; and 2. The affidavit of service of notice of the Plaintiff's claim on any person who is, or may be, an eligible person as well upon any person beneficially entitled to the distributable estate, and any person holding property as a result of a distribution from the estate, as trustee or otherwise. 1. The administrator has filed an Appearance. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2019