Kelly v Kelly

1. [1]

   HIS HONOUR: These proceedings, which have been settled by the parties, and which are in the Family Provision List would not, normally, require considered reasons for judgment. However, in this case, it is necessary to provide written reasons because two of the terms of the Short Minutes of Order which the Court is asked to make, relate to a release, made by the Plaintiff, John Matthew Kelly, of his rights to apply for a family provision order in relation to the estate and notional estate of his mother, Suzanne Edith Kelly, who is the Defendant (now by her tutor) in the proceedings. The approval of the release by the Court is also sought.

2. [2]

   The Defendant requires a tutor because she suffers from moderately severe dementia and is incapable of managing her financial affairs and of making any health related decisions: see copy report dated 22 March 2019 from Dr Nien Hung La, and the report of Dr Jennifer McMeniman dated 18 March 2019, together being Annexure J to the Plaintiff’s affidavit sworn 3 July 2019. The Defendant also suffers from a number of significant age-related illnesses, and she requires full time nursing home care.

3. [3]

   (Whilst the approval of the Court to the settlement of the proceedings, is required, pursuant to s 76 of the Civil Procedure Act 2005 (NSW), written reasons are not usually given in circumstances where the tutor and her legal advisers, and the Court, have considered the family provision order sought to be made, and are satisfied that the agreement or compromise is in the best interests of the incapable person.)

4. [4]

   There is no doubt, to the extent the proceedings now involve the release of rights to apply for a family provision order in relation to the estate and notional estate of his mother, who is the Defendant, that an application for the approval of a release may be commenced before the date of her death, she being the person whose estate may be the subject of an order.

5. [5]

   The settlement of the proceedings before the Court does not involve the Plaintiff giving a release of his rights to make a further claim in respect of the estate of his father, Gregory Thomas Kelly (“the deceased”), out of which estate the Plaintiff sought the family provision order. If it had been, and had the approval of the release by the Court been sought, that aspect, without more, usually, would not require written reasons.

Background Facts

1. [6]

   By Summons filed on 7 March 2019, followed by an amended Summons filed on 18 April 2019, the Plaintiff sought an order for provision under the Succession Act 2006 (NSW) (“the Act”) out of the estate of the deceased.

2. [7]

   The Plaintiff also sought, by the amended Summons, an order, under s 78 and s 79 of the Act, designating property distributed from the estate of the deceased as “notional estate”, to the extent necessary to satisfy an order for provision in favour of the Plaintiff, and to the Plaintiff’s costs of the proceedings. Other ancillary orders were also sought.

3. [8]

   The Defendant is the widow of the deceased. She is almost 82 years of age. She and the deceased married in April 1958, and they remained married to each other until the deceased’s death on 31 March 2018. It follows that they were married for almost 60 years.

4. [9]

   There were five children of the marriage, being Jane Therese Willis, who is aged 60 years; Elizabeth Helen Murphy, who is aged 58 years; Gabrielle Mary Bent, who is aged 56 years; Michael Gregory Kelly, who is aged 53 years; and the Plaintiff, who is aged 46 years.

5. [10]

   In the amended Summons, Jane was named as the tutor for the Defendant in the proceedings.

6. [11]

   The deceased left a Will dated 15 January 2013, Probate of which Will was granted by this Court to the Defendant, on 13 July 2018. By that Will, the deceased left the whole of his estate to the Defendant absolutely, provided she survived him by 30 days.

7. [12]

   Although it is irrelevant in the events that happened, had the Defendant not survived him by 30 days, the deceased left his estate as to one-fifth, to be held by a testamentary trust, one of the discretionary objects of which trust is the Plaintiff. The remaining four-fifths of the estate were divided, equally, between the other four children of the deceased, absolutely.

8. [13]

   In the Inventory of Property attached to, and placed inside, the Probate document, the deceased’s estate was disclosed as having an estimated value of $5,491,555. The estate was said to consist of real property at Yennora, in New South Wales ($1,250,000), cash in bank ($264), a car ($4,000) and shares in a private company, Kelsan Investments Pty Limited (“Kelsan”) ($4,237,291). (I shall omit the reference to cents in the amounts to which I shall refer. This will explain any apparent mathematical errors.)

9. [14]

   There was also disclosed, in the Inventory of Property, property owned by the deceased and the Defendant as joint tenants, being real estate at Strathfield ($3,380,000) and moneys in bank ($148,812). Following the death of the deceased, the jointly held property passed, by survivorship, to the Defendant.

10. [15]

    There was no dispute that the deceased’s interest in the jointly held property might, in certain circumstances, form part of the notional estate of the deceased. The value of the deceased’s interest in property that might be designated as notional estate (calculated as a one-half share of the jointly held property) is $1,764,406.

11. [16]

    At the hearing to which I shall refer, the parties agreed that the whole of the estate of the deceased had been distributed to the Defendant: Tcpt, 31 July 2019, p 1(19-31).

12. [17]

    A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Part 3.3 of the Act: s 63(5). In this case, it will be necessary to make a "notional estate order" as there are no undistributed assets, of sufficient value, in the estate of the deceased, for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made: s 88(b) of the Act.

13. [18]

    From the above, however, it is clear that the value of the deceased’s estate at the date of his death was reasonably large, and that the value of property, at the date of hearing, which may be designated as notional estate, is even larger.

14. [19]

    In an affidavit sworn by the tutor of the Defendant on 30 May 2019, she averred that the Defendant’s “current assets and including assets held with another, if any, are valued at $12,835,789…”. The assets held by the Defendant “include assets distributed to my mother from my father’s estate and assets that were jointly owned by my mother and father”. She added that the Defendant’s liabilities were $616,097.

15. [20]

    It follows, if the estimates provided by the tutor proved accurate, that the net value of the Defendant’s assets, currently, will be in the order of $12,220,000.

The course of the proceedings

1. [21]

   The Plaintiff’s proceedings were first listed for a directions hearing in the Family Provision List on 5 April 2019. On that occasion, it was noted that the named Defendant “…is, or may be, a person under a legal incapacity and that a tutor is to be appointed for the Defendant”. A direction was made that the legal representative of any tutor appointed was to inform the Plaintiff’s solicitors by 12 April 2019 of her, or his, appointment. The Plaintiff was granted leave to file and serve an amended Summons. The Defendant was directed to serve the affidavits required by Paragraph 9 of Practice Note SC Eq 7. The matter was adjourned until 10 May 2019.

2. [22]

   On 10 May 2019, by agreement of the parties, the matter was referred to private mediation before the Honourable Mr W V Windeyer AM RFD ED, which mediation was to be held on 14 June 2019. Consequential directions were made in the event that the matter settled at the mediation, and the proceedings were listed, again, on 28 June 2019.

3. [23]

   On 28 June 2019, the legal representatives of the parties informed the Court that the matter had been settled by the parties. The Court made orders that any original affidavits required to be read, and not already filed, together with the original signed Consent Orders in hard and soft copy reflecting the resolution of the proceedings, together with the settlement checklist, be delivered to my Chambers by 4:00 p.m. on 5 July 2019. The proceedings were then stood over to Friday, 12 July 2019.

4. [24]

   In accordance with the directions made, there was delivered to my Chambers on 3 July 2019, an affidavit sworn by the Plaintiff on that date and an affidavit of Mr A E Dunne, the Plaintiff’s solicitor, stating that he had provided advice to the Plaintiff in regard to the release of his rights.

5. [25]

   On 4 July 2019, an affidavit of the tutor of the Defendant, going to the settlement of the proceedings on behalf of the Defendant, was delivered to my Chambers. There was also delivered, in hard and soft copy, original Short Minutes of Order, dated 14 June 2019, signed by the legal representative of each of the parties, and the completed settlement checklist.

6. [26]

   The Short Minutes of Order dated 14 June 2019, provided (with editorial corrections):

7. [27]

   On 5 July 2019, at my request, my Associate sent an email, in the following terms, to the legal representatives of the parties:

8. [28]

   (The email may have been inaccurate in one respect in that the information about the Defendant’s estate had been included in the affidavit of the tutor sworn on 30 May 2019. However, there was no evidence that the Plaintiff had read, and understood, the contents of that affidavit before he agreed to make the release in respect of the Defendant’s estate.)

9. [29]

   On 11 July 2019, an affidavit sworn 8 July 2019 of the Plaintiff was delivered to my Chambers. To this affidavit was annexed a copy of the tutor’s affidavit of 30 May 2019, which the Plaintiff acknowledged he had read. The affidavit went on:

10. [30]

    On 12 July 2019, the parties appeared by his, and her, counsel, respectively. Submissions were made by each, following which I referred the matter to Chambers, in order to consider whether I would make the orders sought in Chambers.

11. [31]

    On 15 July 2019, at my request, my Associate sent the following email to the legal representatives of the parties:

12. [32]

    There followed a series of emails between the legal representatives relating to a suitable date for the matter to be re-listed. Late on 16 July 2019, by agreement of the parties, the matter was listed, for the hearing of the approval of the release application, at 2:00 p.m. on 31 July 2019. The matter proceeded to be heard on that date with the Plaintiff present in Court.

The Plaintiff’s Evidence in the Proceedings

1. [33]

   I have taken the following facts from the Plaintiff’s affidavit sworn on 1 March 2019:

2. [34]

   In his affidavit of 3 July 2019, the Plaintiff stated that his personal and financial circumstances remained essentially unchanged. He also revealed that a sequestration order had been made against him in June 2011 and that he had been discharged from bankruptcy on 3 August 2014.

3. [35]

   The Plaintiff also disclosed that he had entered into a Deed of Loan on 19 April 2002, with Kelsan, pursuant to which he had borrowed $200,000, a copy of which Deed of Loan was annexed. A copy of another Deed of Acknowledgement, dated 16 November 2015, pursuant to which he acknowledged an additional loan of $30,000 borrowed from Kelsan on 23 October 2007, was also annexed to this affidavit.

4. [36]

   Annexed also to this affidavit, was a copy of the Mortgage, dated 19 April 2002, in which the Plaintiff was named as the mortgagor and Kelsan was named as the mortgagee.

5. [37]

   There is other documentation, being annexure “E” to this affidavit, which states that “[a] review of the Kelsan 2010 financial accounts show Matthew John Kelly to be a debtor of the company for unpaid secured loans of $442,223.12 plus payments made to support his collapsing financial position”.

6. [38]

   There was also annexed to the Plaintiff’s affidavit, a copy of the Will, made 15 January 2013, of the Defendant. In that Will, relevantly, the Defendant appointed her daughters, Elizabeth and Jane, as her executors.

7. [39]

   Clause 4 of the Defendant’s Will, relevantly, provides:

8. [40]

   Clause 5 of the Defendant’s Will, relevantly, provides for the creation of a testamentary discretionary trust in which the Plaintiff is identified as a discretionary object. The “Distribution Date” is defined to mean “the Vesting Date or such earlier date as my Trustee may determine as the Distribution Date”. The “Vesting Date” is defined to mean “the date 70 years from the date of my death or such earlier date prescribed by law as being the last day of the perpetuity period for the purposes of the rule against perpetuities”.

9. [41]

   The other discretionary objects, identified in Clause 5.1 of the Will of the deceased, included any child, or spouse of the Plaintiff; where a trustee of the of the Trust is a company or companies, each trustee in its corporate capacity; where a trustee is a natural person, the trustee in their personal capacity; any company incorporated, in any country, in which any of the beneficiaries are a beneficiary or object, whether present contingent or discretionary (subject to some conditions that I do not repeat); and any company or other body corporate or unincorporated nominated by the trustees (again, subject to some conditions which do not need to be repeated in these reasons.)

10. [42]

    The trustees of the testamentary trust created by the Defendant’s Will are the executors, Elizabeth and Jane, who are given the following powers:

11. [43]

    It was not suggested that the Defendant had the capacity to revoke this Will, or to make another Will.

12. [44]

    During the course of the hearing, I raised a number of matters with counsel, following which, Mr Locke of counsel, who again appeared for the Plaintiff, called the Plaintiff to give oral evidence. Mr Birtles, counsel for the Defendant, did not ask the Plaintiff any questions.

13. [45]

    In answers to questions, it became clear that the Plaintiff, with all due respect to him, did not fully understand all of the advice that he had been given, or comprehend the effect of the release being approved by the Court. This is demonstrated by the following passages of his evidence (Tcpt, 31 July 2019, p 10(18) – p 13(10)):

14. [46]

    His obvious lack of full appreciation of the effect of the approval of the release must have been apparent to the legal representatives of both parties, as, upon the conclusion of the Plaintiff’s evidence, the Court was asked by counsel, to adjourn the proceedings, for a short time, so that they could discuss the way forward.

15. [47]

    Upon my return to Court a short time later, I was informed that the release the Defendant then sought, and the release that the Plaintiff was then prepared to make, was a release of rights limited to the part of the Defendant’s estate that was left in her Will to the Plaintiff’s siblings (or relevant substitute beneficiaries) in Clause 4(c) of the Will. This means that one-fifth of the Defendant’s estate, which passes to the testamentary trust of which the Plaintiff is one discretionary object, would be available to satisfy any claim made by the Plaintiff for provision out of the Defendant’s estate upon her death, and any costs ordered to be paid out of her estate.

16. [48]

    On the present evidence, the value of that one-fifth share of the Defendant’s estate (estimated to be about $2,440,000) would be sufficient to satisfy any claim for provision the Court determined, at that time, should be made for the Plaintiff, and any order for costs.

17. [49]

    The matter was then adjourned so that an amended form of signed orders could be prepared for the Court’s consideration.

18. [50]

    The legal representatives forwarded the following orders to my Chambers on 5 August 2019. The orders broadly accorded with what had been discussed in Court. The Court was also informed that the sale of the property at Strathfield referred to in the orders had been completed after the mediation.

19. [51]

    Following being told, in Court, of the proposed amendment to the form of orders, so far as it related to the release being made by the Plaintiff, I informed the parties that, subject to receipt of the final orders, and a consideration of the form of those orders, in all likelihood, I would approve the limited release and would publish my reasons. These are those reasons.

The Act

1. [52]

   Before referring specifically to s 95 and s 96 of the Act, it is convenient to refer to s 59 of the Act, which provides:

2. [53]

   Section 3 of the Act, provides that a "family provision order" means “an order made by the Court under Chapter 3 in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement in life of an eligible person”. "Notional estate" of a deceased person is defined as meaning “property designated by a notional estate order as notional estate of the deceased person”. A "notional estate order" means an order made by the Court under Chapter 3 designating property specified in the order as notional estate of a deceased person.

3. [54]

   Section 95 of the Act provides:

4. [55]

   (More often than not, the Court is concerned with an executed instrument containing the release, rather than with an agreement to execute such an instrument that would be effective as a release of those rights if approved by the Court under s 95.)

5. [56]

   Section 96 of the Act provides:

6. [57]

   It can be seen that “a change of circumstances does not provide a basis under s 96 of the Succession Act for revocation of the approval of a release made under s 95 in relation to an existing or a prospective family provision claim”: Robinson v Robinson [2019] NSWCA 180, per Basten JA, at [5].

A release of rights

1. [58]

   Although s 95 does not differentiate between different releases of rights to apply for a family provision order, rather referring only to a “release of such rights, if any, as a person has to apply for a family provision order”, different considerations may be relevant, in the Court’s determination of whether to approve a release, depending upon the nature of the release of rights being considered, and whether the release is being made before, or after, the date of the death of the person whose estate may be the subject of the order.

2. [59]

   As has been stated, a release of rights may be made before any proceedings for a family provision order are commenced, but after the death of the person whose estate may be the subject of such an order. Usually, in such a case, the release of rights would be in respect of making a claim for any family provision order in favour of the eligible person, the releasor, out of the estate of the deceased person, whose estate may be the subject of a family provision order. Usually, the plaintiff receives provision out of the deceased’s estate, other than by an order of the Court, and agrees to give a release of rights in respect of making a further claim for a family provision order made in relation to the estate of the deceased.

3. [60]

   Alternatively, the release of rights may be made in proceedings brought seeking a family provision order, after the death of the person whose estate may be the subject of such an order, in circumstances where the plaintiff, as part of a settlement of those proceedings, receives provision out of the deceased’s estate and agrees to give a release of rights in respect of making a further claim for a family provision order made in relation to the estate of the deceased: s 59(3) of the Act.

4. [61]

   The two types of release of rights referred to above, were considered by Brereton J (as his Honour then was) in Anthony John Clifford v Mark Ronald Joseph Clifford [2015] NSWSC 2136. His Honour wrote, at [3]:

5. [62]

   Another alternative, as referred to by Brereton J, would be the release of rights made in circumstances where the plaintiff’s application for a family provision order in relation to the same estate was previously refused and he, or she, has threatened fresh proceedings: s 59(4) of the Act. Similarly, in that type of case, it would be necessary to focus attention, particularly in the evidence of the person giving the release, on just what is being released. The releasor would need to understand that what is being released is the right to make an application in the limited and special circumstances referred to in s 59(4) of the Act.

6. [63]

   In each of the alternatives referred to above, the release of rights is made by the eligible person after the date of the death of the person whose estate may be the subject of the order.

7. [64]

   As stated earlier, a release of rights may be made by an eligible person before the date of the death of the person whose estate may be the subject of the order. Such a release is often called an “inter vivos release”.

8. [65]

   The most common example of this type of release of rights is where the parties, each of whom provides a release of rights in respect of the estate of the other, are former parties to a marriage, or former domestic partners, and have reached a settlement with respect to their property, or the property of either of them, altering the interests of one, or both, in that property under the Family Law Act 1975 (Cth), and where orders under the Family Law Act have been, or are to be, made. Usually, they wish to complete the final severance of their financial relationship by discharging the estate of each from any potential claim for a family provision order by the other.

9. [66]

   In such a case, as was written by Brereton J in Cook, Michael Knox Norton, by his tutor Richard D’Apice v Michael James Harris [2015] NSWSC 2147, at [5]-[6]:

10. [67]

    A further example of an inter vivos release is where persons have made a pre-nuptial agreement in which mutual releases of rights have been made but no application is made, at that time, for approval of the releases. A question arises, later, whether the release of rights should be approved after death of one of the parties to the pre-nuptial agreement. An example of such a case is Russell v Quinton [2000] NSWSC 322.

11. [68]

    Another recent example is where, in proceedings seeking possession of a property, the Court is asked to approve a release of rights made by the defendant (an adult child) in circumstances where it was agreed that $30,000 would be paid to him as an advancement on his entitlement under the Will of the plaintiff (the father of the defendant), and where, in return for the advancement, the defendant has agreed to release any rights that he may have to make a claim under the Succession Act in relation to the plaintiff’s estate: Kannisto v Kannisto (No. 2) [2019] NSWSC 950. Also see, Kazzi v Kazzi [2018] NSWSC 1835.

12. [69]

    The present case, whilst it involves an inter vivos release, is very different from the above examples. Here, an eligible person is making a release of rights in relation to the estate and notional estate of his mother, before the date of her death, as part of the settlement of existing family provision proceedings in which an order for provision is sought to be made in respect of the eligible person’s deceased father.

13. [70]

    In any of the examples referred to above, a release of rights to apply for a family provision order may be in relation to the whole, or any part, of the estate or notional estate of a person.

Some general principles

1. [71]

   It is possible to state some general principles that apply to s 95 of the Act. I make clear that I do not intend what I shall describe as “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction of the Court in relation to the approval of a release under the Act should be unduly confined, or that the discretion should be constrained, by statements of general principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power given to the Court, which is left largely unfettered.

2. [72]

   The general principles that I consider to be relevant under s 95 of the Act are:

Approval under s 76 Civil Procedure Act

1. [73]

   It is clear that, although the wording of s 76 of the Civil Procedure Act gives an unfettered discretion, there is a wealth of authority that confirms that the Court should only approve the compromise if it is in the best interests of the person under a legal incapacity, or if it is beneficial to him or her: see, for example, Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388, which was applied by Allsop P (as his Honour then was) in Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298, at [2].

2. [74]

   While the Court will rely on the evidence before it advanced by the parties, including the view of the tutor and her, or his, legal advisers as to the appropriateness of the settlement, ultimately, the Court exercises its own independent judgment and considers for itself whether the settlement is beneficial to the person under the legal incapacity.

Dealing with the approvals in Chambers

1. [75]

   Section 11 of the Supreme Court Act 1970 (NSW) provides:

2. [76]

   Under s 11, there is no restriction on where the Supreme Court may exercise its powers, apart possibly from constitutional limits, not relevant in this case, requiring there to be a nexus with New South Wales. This is apparent from s 11(2) of the Supreme Court Act, which, by the use of the phrase “or otherwise”, contemplates no restriction on where the business of the Court might be conducted: King Investment Solutions v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076, per Campbell J, at [147].

3. [77]

   Arguably, by virtue of s 11(1), a reference to a matter being dealt with “in chambers” is now an anachronism. In any event, dealing with a matter “in chambers” does not mean that the proceedings are dealt with in secret. It means no more than a less formal procedure may be adopted by the Court in matters where there is no opposition to the Court making the orders sought: Le Grand v Criminal Justice Commission [2001] QCA 432, per White J (with whom Davies and Williams JJA agreed), at [19]. (Of course, that case was determined by reference to the Supreme Court Act 1995 (Qld). Nonetheless, the principle to which I have referred remains applicable.) Otherwise, the business of the Court is conducted in court.

4. [78]

   In the Family Provision List, the Court, frequently, makes orders in chambers. In compliance with s 56 of the Civil Procedure Act, which requires the Court to give effect to the overriding purpose of the Act and of rules of court, in their application to civil proceedings, to facilitate the just, quick and cheap resolution of the real issues in the proceedings, and also in cases where the Court wishes to save parties the expense of an additional appearance by their legal representatives, orders, such as orders finally resolving the proceedings, or other procedural orders, are regularly made in chambers.

5. [79]

   Dealing with the matter in chambers still requires the documents in the Court file, where relevant, to be read, and the formal notation of the documents that have been read in the Court’s record of proceedings. The settlement checklist, which the legal representatives are now required to consider, complete, and sign, in family provision matters that are compromised where an order under the Act is to be made, assists in the task of identifying the documents to be read and considered together with other relevant matters (such as whether the consent of the beneficiary who is bearing the burden of provision made in favour of the Plaintiff has been obtained).

6. [80]

   Of course, as in this case, the Court may, if thought appropriate, deal with the matter in Court, and then, if necessary, refer it to chambers, to enable the orders to be made.

Determination

1. [81]

   In this case, I have no doubt that the settlement of the claim for a family provision order out of the deceased’s estate, made by the Plaintiff, although it will reduce the value of the property of the Defendant, is a settlement that is in the best interests of the Defendant. Nothing more needs to be said about this aspect of the settlement of the proceedings.

2. [82]

   Then, as earlier noted, there can be no doubt that the Court has jurisdiction to approve the release of his rights, as amended, made by the Plaintiff, in respect of the Defendant’s estate and notional estate.

3. [83]

   In determining the application for approval of the release, as amended, I have taken into account all of the circumstances of the case, including the four matters specifically referred to in s 95(4)(d) of the Act. Although I would not have approved the initial release made by the Plaintiff, as a result of his evidence, it seems to me that, now, the approval of the release, in its amended form, ought to be given.

4. [84]

   In this regard, and amongst other things, I consider that it is, at the time the agreement to make the release is made, to the advantage, financially or otherwise, of the Plaintiff to make the release. He has confirmed that he has received provision from the estate of the deceased. The amount of the provision that he receives, in hand, will be $170,000, after payment of his costs, calculated on the indemnity basis. This amount will enable him to repay his mortgage debt ($70,000), which will correspondingly result in an increase in his available income, and leave about $100,000 for exigencies of life. Whilst employed, his income is sufficient to meet his expenditure.

5. [85]

   The Plaintiff has confirmed, by counsel, that another issue that the existence of a possible debt owed by him to Kelsan, has “been put to rest” by that company acknowledging that there is no debt: Tcpt, 31 July 2019, p 2(2-16). His financial security, undoubtedly, is improved in the circumstances.

6. [86]

   It is to the Plaintiff’s advantage otherwise, because it brings to an end this somewhat unfortunate dispute between him and his mother, and indirectly, his siblings, and enables all of them, hopefully, to resurrect their familial relationship. It also provides the certainty of a known outcome in the proceedings relating to his claim for provision out of the deceased’s estate.

7. [87]

   By resolving the proceedings, and granting the release, he should be able to maintain a relationship with his siblings without each of those siblings being concerned that what is currently provided for her, and him, respectively, in the Will of the Defendant may be affected by a family provision order on the death of the Defendant.

8. [88]

   Furthermore, in the event there is any detrimental change to the Plaintiff’s financial circumstances, upon the death of the Defendant, he will be able to make a claim for a family provision order out of her estate, if he chooses to, albeit the part of her estate out of which provision will be able to be made will be limited to the 20 per cent (or one-fifth) share that has not been provided to each of his siblings. In other words, his entitlement to make a claim survives this settlement and the approval of the release.

9. [89]

   The Plaintiff believes it is prudent to make the release in its amended form. For similar reasons, I also consider that it is, currently, prudent for the Plaintiff to make the release as amended. The current value of the share of the Defendant’s estate that should be available to satisfy any family provision order, or any order as to costs, which the Court is then of the opinion should be made, appears to be more than enough.

10. [90]

    The Plaintiff also believes the terms of the release, in its amended form are fair and reasonable, in that only part (albeit 80 per cent, or a four-fifths share) of the Defendant’s estate is being released. As stated, the balance of the estate, on present indications, appears to be sufficient to satisfy any order for provision and for costs that might be made in favour of the Plaintiff out of the Defendant’s estate.

11. [91]

    The Plaintiff has taken independent advice in relation to the release and says that he has given due consideration to that advice. This is clear by reason of the amendment to the release, by limiting it to the one-fifth share of the Defendant’s estate that is to be paid into the testamentary trust. In this regard, the Plaintiff has been represented by experienced counsel and solicitor, as has the Defendant. Furthermore, the Defendant’s tutor supports the application in its amended form.

12. [92]

    In all the circumstances, I have made the following orders and notations:

    1. (1)

       Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that the Plaintiff receive, by way of provision, out of the notional estate of Gregory Thomas Kelly (“the deceased”), a lump sum of $215,000.

    2. (2)

       Orders that the lump sum be paid within 7 days of the date of the making of these orders.

    3. (3)

       Orders that no interest is to be paid on the lump sum if it is paid within 7 days of the date of the making of these orders and if not so paid, interest is to be paid on any unpaid part thereof calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from the 8th day after the date of the making of these orders until paid in full.

    4. (4)

       Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff.

    5. (5)

       Orders that such of the following property be designated as notional estate as is necessary to satisfy the lump sum, any costs interest thereon, and any unpaid costs of the Defendant:

    6. (6)

       Notes the agreement of the parties that:

    7. (7)

       Notes that the Plaintiff releases his right to apply for an order for provision from that part of the estate of the Defendant given to his siblings, Jane Therese Willis, Gabrielle Mary Bent, Elizabeth Helen Murphy, and Michael Gregory Kelly (or to any substitute beneficiaries), by Clause 4(c) of the Defendant’s Will dated 15 January 2013, but preserving his right to make a claim for a family provision order out of the one-fifth part of her estate to be settled on the trust pursuant to Clause 5 of that Will.

    8. (8)

       Orders that the release by the Plaintiff, of his rights to apply for a family provision order out of that part of the Defendant’s estate as is referred to in Paragraph (7) above, be approved pursuant to s 95 of the Succession Act 2006 (NSW).

    9. (9)

       Orders that the settlement of the claim against Suzanne Edith Kelly, who is a person under legal incapacity, be approved pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW).

    10. (10)

        Notes that the tutor of the Defendant and her legal advisers have considered the compromise and believe it to be beneficial to, and in the interests of, the Defendant.

    11. (11)

        Makes no order as to the Plaintiff’s costs, to the intent that he will bear his own costs of the proceedings.

    12. (12)

        Orders that the Defendant’s costs, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the notional estate of the deceased.

    13. (13)

        Notes the agreement of the parties that: