Austin v Austin [2019] NSWSC 1397

Austin v Austin [2019] NSWSC 1397

Approval was granted for the amended release, as the Court was satisfied that the Defendant had full knowledge and understanding of the release, had independent legal advice, considered the risks, found the arrangement fair and reasonable, and that the release was to his advantage and prudent according to s 95(4) Succession Act 2006 (NSW). The Court's discretion was exercised favourably as the release was for part, not the whole, of the estate, with adequate provision preserved by the Release Excluded Amount.

Parties
Plaintiff: Fiona Louise Mac Cormick Austin; Defendant: Philip Daniel Austin
Jurisdiction
Australia
Judgment Date
30 August 2019
Procedural Posture
Application for Approval of Inter Vivos Release (succession/family Provision) / Decision on Application for Approval of Release Under S 95 Succession Act 2006 (nsw)
Outcome
Application for approval of amended release granted.
Legal Topics
Family Provision, Inter Vivos Release, Approval of Release Under Succession Act 2006 (nsw) S 95
Succession Law Equity Family Provision Inter Vivos Release Approval of Release Under Succession Act 2006 (nsw) S 95

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Parties

Fiona Louise Mac Cormick Austin

Plaintiff

Philip Daniel Austin

Defendant

Procedural Posture

Application for Approval of Inter Vivos Release (succession/family Provision) / Decision on Application for Approval of Release Under S 95 Succession Act 2006 (nsw)

Legal Issues

  1. 1 Whether the Court should approve an inter vivos release, made by the Defendant, of his rights to make an application for a family provision order in respect of the Plaintiff's estate under s 95 of the Succession Act 2006 (NSW)
  2. 2 Whether the release, as amended, is fair, reasonable, to the advantage of the Defendant, and prudent, taking into account all the circumstances of the case including the matters in s 95(4)

Ratio Decidendi

Approval was granted for the amended release, as the Court was satisfied that the Defendant had full knowledge and understanding of the release, had independent legal advice, considered the risks, found the arrangement fair and reasonable, and that the release was to his advantage and prudent according to s 95(4) Succession Act 2006 (NSW). The Court's discretion was exercised favourably as the release was for part, not the whole, of the estate, with adequate provision preserved by the Release Excluded Amount.

Court Disposition

Application for approval of amended release granted.

Orders

  • The agreement of the parties in the Deed of Release and Indemnity dated 28 August 2019 (Ex. A) is noted.
  • The Defendant’s release of rights to apply for a family provision order in relation to the Plaintiff's estate or notional estate, except with respect to assets up to AUD$6 million (adjusted for inflation), is approved under s 95 Succession Act 2006 (NSW).