Mikhaiel v Breene [2022] NSWSC 102

Mikhaiel v Breene [2022] NSWSC 102

The mutual releases should be approved as each party, both legally qualified and independently advised, entered into the Deed of Release to achieve a final severance of finances with certainty as to future testamentary dispositions. The releases are mirror in form, prudent, fair, and reasonable, and all statutory criteria under s 95(4) are satisfied; thus, Court approval is appropriate.

Jurisdiction
Australia
Judgment Date
11 February 2022
Procedural Posture
Application for Approval of Inter Vivos Release (succession/family Provision) / Decision on Application (judgment on Papers)
Outcome
Application granted (approval of releases)
Legal Topics
['family Provision' 'approval of Release Under S 95 Succession Act 2006 (nsw)' 'inter Vivos Deed of Release' 'independent Legal Advice' 'property Settlement Between De Facto Partners']
['succession Law' 'equity'] ['family Provision' 'approval of Release Under S 95 Succession Act 2006 (nsw)' 'inter Vivos Deed of Release' 'independent Legal Advice' 'property Settlement Between De Facto Partners']

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Procedural Posture

Application for Approval of Inter Vivos Release (succession/family Provision) / Decision on Application (judgment on Papers)

Legal Issues

  1. 1 ["Whether the mutual inter vivos releases of rights to apply for a Family Provision order in respect of the other's estate/notional estate should be approved under s 95 of the Succession Act 2006 (NSW)"]

Ratio Decidendi

The mutual releases should be approved as each party, both legally qualified and independently advised, entered into the Deed of Release to achieve a final severance of finances with certainty as to future testamentary dispositions. The releases are mirror in form, prudent, fair, and reasonable, and all statutory criteria under s 95(4) are satisfied; thus, Court approval is appropriate.

Court Disposition

Application granted (approval of releases)

Orders

  • ['Pursuant to s 95 of the Succession Act 2006 (NSW), approve the release by the plaintiff pursuant to Deed of Release dated 20 August 2021 of her rights to apply for a Family Provision order in respect of the estate, or notional estate, of the defendant, in the event that the defendant shall become a deceased...