Release of Rights – Will Disputes & Family Provision Claims In NSWThis page provides on the consequences and when it is imperative to draft and have a document signed for release of rights.
Release of Rights
- Under section 95 of the Succession Act (NSW) states that an eligible person is able to release his or her right to bring a Family Provision Claim. However, the Court must look at the following factors in determining an application to approval a release under section 95.
- Section 95 (4) states that in determining an application for approval of a release, the Court is to take into account all the circumstances of the case, including whether:
(a) it is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release, and
(b) it is or was, at that time, prudent for the releasing party to make the release, and
(c) the provisions of any agreement to make the release are or were, at that time, fair and reasonable, and
(d) the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice
- The Court’s approval is required in order to have a release binding on parties as it is a refection on the parties intention.
- It must also be noted that a Family Provision Release is able to be incorporated into a binding financial agreement under the Family Law Act (section 90UB Family Law Act 1976 (Cth)).
- It is possible for a person to “contract out” of his/her right to make an application for a family provision order, or a further family provision order by executing a release of rights. However, the release must be approved by a court and cannot have been revoked by the court – Succession Act (NSW) s 95(1).
- The court may approve the release before or after the deceased’s death. The court may only revoke an approval of a release in limited circumstances; with the consent of all sufficiently affected persons or in cases of fraud or undue influence – Succession Act (NSW) s 96.
- The court will not give the release merely because it is by consent. Under the Succession Act s 95(4) it is required to consider various matters. It will take into account whether the release was to the releasing person’s advantage financially or otherwise, whether it was prudent for the releasing person to make the release, whether the provisions of the release were fair and reasonable at the time, and whether the releasing party has taken independent advice and given due consideration to the advice.
- Releases occur in two cases:
- Releases executed before the deceased’s death; generally, as part of a general family arrangement or as part of a family law property settlement; and
- Releases executed after the deceased’s death as part of the settlement of a family provision claim or perhaps some other claim against the estate of the deceased.
- Where the matter has settled in mediation, both parties may agree that no further proceedings may be brought under the following estate/s to avoid further litigation. By having both parties agreeing to have a release of rights signed than the matter has settled.
- The case of Oxley v Oxley  NSWSC 1606 – Where a son and mother where involved in a family dispute matter and a term of that settlement was that the son would not be able to bring a case or challenge the mother’s will if she passed away.