One the first questions that we often ask clients in an initial consultation is ‘do you have any former spouses?’ This is to determine who may potentially make a claim on your estate. If you have had a property settlement authorised by the Family or Federal Court of Australia, by way of consent orders, your former spouse typically cannot make a claim on your estate.
However, the Supreme Court of New South Wales is the only authority that can approve an inter vivos (while you are alive) release of a person’s statutory right to make a claim on another person’s estate. The Court can also approve such a release after a person has died.
Often family law agreements will state that you mutually release your right to make a claim on each other’s estates, but unless this release has been approved by the Supreme Court of New South Wales (if you are domiciled in New South Wales or have real estate there), your former spouse is still eligible to make a claim.
There is a relatively simple way to ensure that those releases are enforceable, and that is by applying to the Supreme Court for approval of the release under s.95 of the Succession Act 2006 (NSW).
Approval of releases of rights to make a family provision claim are not only limited to former spouses but also can be used in respect of other eligible applicants and circumstances such as where an early inheritance has been given or as part of a ‘pre-nup’.
Contact the team at de Groots today to discuss whether you should seek the Court’s approval to a release of rights to make a family provision claim.
Kate Donnan, Associate