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The intersection between Family Law and Succession Law

A recent matter in the NSW Supreme Court caught my eye; the matter of Mikhaiel v Breene dealt with the intersection of Family Law and Succession Law.

This matter was an application by the former de facto to have a Deed of Release, entered into by the parties, approved by the Supreme Court. The Deed of Release provided that the parties would not make a claim against the estate of the other. The parties had entered into the Deed of Release at the same time they had executed other documents dealing with their property division following the breakdown of their relationship.

Section 95 of the Succession Act provides that such a Deed of Release only has effect if it is approved by the Court. In approving such a Deed, the Court needs to consider that it was to the advantage, financial or otherwise, of the party to make the release; that it was prudent for them to do so; the provisions of the release are fair and reasonable; and the releasing party has taken independent advice – and given due consideration to that advice. The Court noted that determination of those issues did not necessarily have to involve a hearing; if the application was essentially an agreed application it could occur “on the papers” – i.e. with written evidence by parties as to those issues.

In this case the Court was satisfied the Deed should be approved; the Court, although acknowledging the dollar value of what was being given up could not be quantified, the certainty that each party gained in knowing they were independently able to determine their financial future, made it to the advantage of each of the parties and prudent for them to enter into the Deed. Noting that the Releases mirrored each other, the Court was satisfied they were fair and reasonable. That the Deed contained certificates of independent legal advice and that both parties were lawyers, the Court was satisfied they had received and considered independent advice.

Accordingly, the Releases were approved. The parties have now finalised their financial relationship both in family law and in succession.

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