Libbert v Mironow

HIS HONOUR: Before the Court is an application made by summons filed on 29 October 2015 by the plaintiff Stephen Barry Libbert, the executor of the estate of the late Betty Devora Libbert, in which he claims an order approving, pursuant to (NSW) Succession Act 2006, s 95, a release by the defendant Amanda Jane Mironow of her right to seek a family provision order out of the estate and notional estate of the deceased.

In conjunction with that summons, the Court is asked to make orders by consent as follows:

The release in question is to be found in a deed dated 28 October 2015 between the plaintiff as executor and the plaintiff and the defendant as beneficiaries and eligible persons in relation to the estate.

Probate of the deceased's will dated 12 January 2006 was granted to the plaintiff on 29 May 2015, the deceased having died on 10 March 2015. The inventory, together with an affidavit of additional assets and liabilities, indicates that the estate has a gross value of $1.307 million and a net value of in excess of $1.305 million. By her will, the deceased appointed the plaintiff and her solicitor, who did not survive the deceased, as executors and trustees, made a gift of jewellery to the defendant in clause 5, made other gifts of personalty, which are not of present relevance and which are not disturbed by the proposed orders, and gave the rest and residue of her estate in effect to the plaintiff absolutely.

I am very comfortably satisfied that, subject to some observations to which I shall come, in principle orders providing for the defendant to receive provision of $500,000 out of the estate in addition to the gift of personalty in clause 5 are proper, and ordinarily I would not hesitate to approve a s 95 release given in consideration of a settlement upon those terms.

The difficulties arise because of the terms of the deed of release and an affidavit of the plaintiff sworn in support of the application. The deed contains the following provisions:

The release, which is to be found in clause 3.2 and is the subject of the application for approval, is expressed to be in consideration of the terms of the deed and the provision made in it for Amanda being affected by Stephen within the time specified in clause 2.1.

The difficulties, as they seem to me, are, first, whereas proposed order 1 of the consent orders provides for a legacy out of the estate of $500,000, clause 2.1 of the deed provides for a payment by Stephen "in his personal capacity" to Amanda of a sum of $500,000. Secondly, clause 2.2 envisages that Stephen would satisfy that obligation by selling Amanda's shares in a company that had been controlled by the deceased and paying the proceeds of her own shares to her and that he would then merely top up the difference to $500,000. That appeared to be the intention, as was confirmed by Stephen's affidavit. Accordingly, it seemed that the plaintiff was in fact receiving no provision out of the estate, some $40,000 odd from Stephen and some $460,000 from her own assets.

It has now been made clear that the executor does not intend to proceed in that way and, despite the terms of the deed, the $500,000 is to be provided from assets of the estate. There is only one sum of $500,000, and Amanda is to retain her shareholding in the company for whatever it is worth. As I have indicated to the parties, and in order to avoid future disputation, I propose to record formally as notations their common intent that that is so

On the basis that it is their common intent that that is the way in which the orders will be carried into effect, I am satisfied that giving the release is to the advantage financially and otherwise of the defendant, that she has been appropriately advised in that respect and that it is appropriate to approve the release.

Accordingly, the Court with the consent of the parties notes that:

The Court orders that: