Family members sometimes want to avoid future disputes about a person’s estate. One way of doing this is by signing a deed where a person agrees not to make a family provision claim in the future.

In New South Wales, signing an agreement is not enough.

Under section 95 of the Succession Act 2006 (NSW), a person can agree to give up their right to make a family provision claim, but the release will only be binding if it is approved by the Court.

What is a section 95 release?

A section 95 release is an agreement where a person gives up their right to ask the Court for further provision from an estate.

The release can be made before or after the death of the person whose estate is involved. It can also apply to all or only part of the estate.

A section 95 release may be useful where family members have already reached a financial settlement and want greater certainty that the matter will not be litigated later.

Will the Court automatically approve the release?

No. The Court will look carefully at the circumstances before deciding whether the release should be approved.

The Court will consider whether:

• the release gave the person releasing their right to make a claim a financial or other advantage;
• it was sensible and appropriate for the person to enter into the agreement;
• the agreement was fair and reasonable when it was made; and
• the person received independent legal advice and properly considered that advice.

These factors help the Court decide whether the person understood the deed and whether it was fair for them to give up their rights.

Why is Court approval important?

Without Court approval, the release may not prevent a person from later making a family provision claim.

Once a release has been approved, it is much more difficult to undo. The Court can only revoke its approval in limited circumstances, including where there has been fraud or undue influence.

For families who want certainty about future estate claims, a section 95 release can be an important tool. Because the Court must approve the release, it is important and mandatory to obtain legal advice before entering into the agreement.

This article provides general information only and does not constitute legal advice.