What Is a Section 95 Release in NSW and Can It Stop a Family Provision Claim?

Why Section 95 Releases Matter

Family provision claims are one of the most common sources of estate litigation in NSW. An eligible person under section 57 of the Succession Act 2006 (NSW) can contest a will even after a family law property settlement, after receiving a substantial lifetime gift, or where the testator clearly intended to exclude them.

That creates real problems. A separated spouse who received a fair property settlement can still claim against the deceased’s estate. A child who received an early inheritance may come back for more. NSW is the only jurisdiction in Australia with a legislated mechanism to address this.

Without Court approval, any agreement purporting to release family provision rights is not legally binding. A clause in a binding financial agreement, a private deed, or a written undertaking will not prevent a claim unless the Supreme Court of NSW has approved the release under section 95.

What the Section 95 Release Covers

Under section 95(2) of the Succession Act 2006 (NSW), an application for Court approval of a release may be made before or after the death of the person whose estate may be the subject of the order. This means a release can be arranged either during the testator’s lifetime as part of proactive estate planning or after death, if needed.

Under section 95(3), the Court may approve a release in relation to the whole or any part of the estate or notional estate. A release can therefore be partial, covering only certain assets or only assets in NSW.

One key limitation: a section 95 release approved by the Supreme Court of NSW is only binding in NSW. Other Australian states have no equivalent legislation. If the estate includes significant assets in other states, specialist advice on those jurisdictions is essential.

When Is a Section 95 Release Used?

There are three main situations where a section 95 release is commonly used. Each arises from a context in which one party has received value or has agreed to sever their financial connection with the other, and both parties want certainty that no future estate claim will be made.

Family Law Property Settlements

When a marriage or de facto relationship ends, the parties typically divide their property through consent orders or a binding financial agreement. These are designed to achieve a clean financial break. 

However, they do not prevent the surviving party from making a family provision claim after the other dies. A former spouse who received a generous property settlement remains eligible under section 57 of the Succession Act 2006 (NSW).

Obtaining a section 95 release at the time of the property settlement closes that gap. It is most effective when obtained while both parties are alive.

Early Inheritance or Substantial Lifetime Gifts

A parent who gives a child a significant sum during their lifetime may intend that gift to represent the child’s share of the estate. Without a section 95 release, the child can still contest the will. A release documented at the time the gift is made provides binding evidence of both parties’ intentions.

Blended Family and Estate Planning

In blended families, a parent often wants to protect assets for the children of a first relationship while acknowledging the interests of a current spouse. A section 95 release, obtained as part of a broader estate plan, gives certainty that one party will not later make a claim that reduces what is available for the children.

More: How to Stop Someone Contesting a Will in NSW, Australia

What the Court Considers Before Approving a Release

Approval under section 95 is not automatic. Under section 95(4), the Court must take into account all the circumstances, including the following four factors.

• Whether it was to the advantage of the releasing party to make the release. The releasing party must have received genuine value in exchange for giving up their future claim rights. The exchange need not be equal in dollar terms, but it must be real.
• Whether it was prudent for the releasing party to make the release. The Court assesses whether a reasonable person in the releasing party’s position would have agreed to the release. Giving up substantial future rights for very little in return may lead the Court to refuse approval.
• Whether the provisions of the agreement are fair and reasonable. The terms must be fair in the context of the overall arrangement, not just technically prudent.
• Whether the releasing party has taken independent legal advice and given it due consideration. The releasing party must have received advice from a solicitor independent of the other party, who properly explained the effect of the release. A solicitor’s certificate does not automatically satisfy this requirement if the advice was inadequate.

In Neil v Jacovou [2011] NSWSC 87, Slattery J declined to approve a release because the releasing party had signed a pre-nuptial agreement days before the wedding without a proper explanation of what it meant. Despite a solicitor’s certificate, the Court declined to approve the release and the family provision claim proceeded.

How to Apply for Approval of a Release

The application for approval is made to the Supreme Court of NSW, which provides an inter vivos release application template. The application must be supported by an affidavit setting out the background, the circumstances of the agreement, and evidence addressing the four section 95(4) factors.

The application may be made by either party or, after the testator’s death, by the executor. In practice, the application is most effective while both parties are alive. Post-death applications are possible but harder to prove in the absence of the testator’s evidence.

If approved, the release prevents the releasing party from making any family provision claim, even where they would otherwise qualify as an eligible person and could show financial need.

Can a Section 95 Release Be Revoked?

Yes. Section 96 of the Succession Act 2006 (NSW) allows the Court to revoke its approval of a release. The circumstances are limited. A party seeking revocation would need to show that the grounds for the original approval have changed materially, or that approval was given based on a mistake or misrepresentation.

Revocation is not a general right of exit. Where the release was genuinely entered into with independent advice and fair exchange of value, revocation is rarely successful.

What a Section 95 Release Cannot Do?

There are important limits on the protection a section 95 release provides. The NSW Law Reform Commission’s Report 110 on uniform succession laws for family provision outlines the policy framework behind these provisions.

• It covers only family provision claims under Chapter 3 of the Succession Act 2006 (NSW). It does not preclude challenges to a will’s validity on other grounds, such as testamentary capacity, undue influence, or suspicious circumstances.
• It is only binding in NSW. Assets in other states are not protected without equivalent arrangements under the laws of each relevant jurisdiction.
• It does not bind third parties. Children of the releasing party are not bound by the parent’s release. Each eligible person’s rights must be addressed individually.
• A release without Court approval has no binding legal effect, regardless of what any private agreement or deed says.

Getting Estate Planning Right

A section 95 release is one of the most effective tools in NSW estate planning, but it works best as part of a broader strategy. It should be combined with a carefully drafted will, appropriate asset structuring, and advice that accounts for both succession and family law considerations.

For testators in blended families, those who have made substantial lifetime gifts, or those going through separation, seeking specialist estate planning advice at the right time significantly reduces the risk of future litigation.

More: What is a Family Provision Claim in NSW?

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Our head office is in Edgecliff in Sydney’s Eastern Suburbs, and we assist clients across the Inner West, North Shore, Western Sydney, and Greater Sydney. We act for clients in all Australian states and territories.

Speak With a Wills and Estate Lawyer

A section 95 release must be properly documented, independently advised, and Court-approved to be effective. Call 1300 414 844 to discuss whether a release suits your circumstances. Empower Wills and Estate Lawyers offers sliding fee scales, payment plans, pensioner discounts, and no-win, no-fee arrangements in eligible matters. Disbursements and barrister’s fees remain payable regardless of outcome.