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

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

The releases given by Madeline and Gerlie of their rights under Succession Act, Chapter 3 should be approved as to their advantage, prudent and fair, and entered after independent advice. The trustee is justified in exercising its discretion to advance the Perpetuity Date and distribute the Trust property in accordance with the settlement and the deceased's memorandum of wishes. The orders giving effect to the settlement are made in both proceedings.

Parties
Plaintiff: Madeline Jarligo Monaghan; Plaintiff: Gerlie Obsuna Monaghan; Defendant/executor: Peter Alexander Monaghan; Trustee (applicant for Judicial Advice): Peter M. Monaghan Pty Ltd (Trustee of Monaghan Discretionary Trust)
Jurisdiction
Australia
Judgment Date
19 September 2016
Procedural Posture
Equity—succession—trusts / Application for Approval of Releases Under Succession Act 2006 (nsw) S 95 and Judicial Advice Under Trustee Act 1925 (nsw) S 63; Final Orders
Outcome
Applications for approval of releases granted; judicial advice given; principal orders made for distribution of estate and trust assets according to settlement.
Legal Topics
Approval of Releases From Family Provision Claims, Judicial Advice to Trustee, Distribution of Family Trust Assets, Effect of Memorandum of Wishes, Matrimonial Property Settlements
Succession Trusts and Estates Family Provision Approval of Releases From Family Provision Claims Judicial Advice to Trustee Distribution of Family Trust Assets Effect of Memorandum of Wishes Matrimonial Property Settlements

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Parties

Madeline Jarligo Monaghan

Plaintiff

Gerlie Obsuna Monaghan

Plaintiff

Peter Alexander Monaghan

Defendant/executor

Peter M. Monaghan Pty Ltd (Trustee of Monaghan Discretionary Trust)

Trustee (applicant for Judicial Advice)

Procedural Posture

Equity—succession—trusts / Application for Approval of Releases Under Succession Act 2006 (nsw) S 95 and Judicial Advice Under Trustee Act 1925 (nsw) S 63; Final Orders

Legal Issues

  1. 1 Whether the Court should approve releases of rights to apply for family provision orders pursuant to Succession Act 2006 (NSW), s 95 for the deceased's former and current wife
  2. 2 Whether the Trustee of the Monaghan Discretionary Trust would be justified in vesting and distributing the trust property in accordance with the March 2016 Deed and the deceased's memorandum of wishes

Ratio Decidendi

The releases given by Madeline and Gerlie of their rights under Succession Act, Chapter 3 should be approved as to their advantage, prudent and fair, and entered after independent advice. The trustee is justified in exercising its discretion to advance the Perpetuity Date and distribute the Trust property in accordance with the settlement and the deceased's memorandum of wishes. The orders giving effect to the settlement are made in both proceedings.

Court Disposition

Applications for approval of releases granted; judicial advice given; principal orders made for distribution of estate and trust assets according to settlement.

Orders

  • Approval of releases by Madeline and Gerlie under Succession Act 2006 (NSW), s 95
  • Judicial advice to trustee that it is justified in vesting and distributing trust assets as per settlement