Where There is a ‘Will’ There is a Relative!

Contesting a will

There is an old saying “where there is a Will there is a relative”. This saying is reflected by the legislative requirements for family provision under the Succession Act 2006 (NSW) which has been the subject of numerous litigation cases. Often when relatives of the deceased are removed from a Will, claims against the Estate are made. In order for the overlooked relatives’ claims to be successful, they must prove that the deceased was obliged to make adequate provision for their proper maintenance and advancement.


In the recent case of Chapman v Ingold: Estate of the late Eleanor Merle Ingold [2015] NSWSC 1604, the Supreme Court re-stated the principles of what constitutes “adequate and proper provision” in family provision applications, in the context of a relatively small estate. This case highlights the potential complexity of such claims and the variety of factors you should weigh up when considering making a claim for family provision from a deceased relative’s estate.


The deceased in this case left the entirety of her estate (which amounted to approximately $205,000) to her grandson whom she had treated as her own son for most of his life. The deceased’s two living daughters, who were the grandson’s aunts, were excluded from their mother’s Will and consequently brought claims for family provision from the estate pursuant to Chapter 3 of the Succession Act.

The Court’s Decision

In making its decision, the Court considered the meaning and purpose of what would constitute “adequate provision for the proper maintenance and advancement” of the claimants. Whilst the determination of what was ‘adequate’ remained a relatively straightforward economic assessment of the claimant’s needs, the question of whether the provision would enable ‘proper’ maintenance and advancement remained highly fact sensitive.

It is necessary to consider all of the circumstances surrounding the claimant and their relationship with the deceased when considering the question of adequate and proper provision. The Court further noted that section 60(2) of the Succession Act outlines which factors ought to be considered.

Justice Hallen found in this particular circumstance of the case, that the fact that each of the claimants were adults in their sixties living with their husbands with considerable joint assets demonstrated that they did not satisfy the element of financial need that would warrant the Court’s intervention in how the estate’s assets would be distributed.

His Honour also emphasised the importance of the size of the estate in this dispute and noted that adult children will not be automatically barred from making a successful claim simply because they had reached adulthood.

In this case the estate was quite modest and this factored heavily in the judge’s decision to dismiss the claimants’ application, whereas in more substantial estates the courts may be more open to finding in favour of a family provision claim.

Having considered the entirety of the factors, His Honour also confirmed the principle that the purpose of family law provision legislation is not to “correct the hurt feelings, or sense of wrong, felt by each applicant. Rather, the court’s role is of a specific type and goes no further than the making of “adequate” provision in all the circumstances for the “proper” maintenance, education and advancement in life of an applicant.”

It is not enough to simply feel disappointed or left out of a Will, you must demonstrate your need to justify a successful claim for family provision. If you are considering challenging a Will by making an application for family provision, you should always consider the following questions carefully and discuss them with your lawyer:

  1. What is the size of the deceased’s estate?;
  2. What is the state of your own financial affairs and how do your assets compare to the assets of the estate?;
  3. Have you received any financial assistance from the deceased in their lifetime?;
  4. Who else may have a claim on the estate?; and
  5. What personal circumstances will demonstrate your need for provision (eg health, age, education, employment, financial liabilities)?

At Fox & Staniland, we have extensive experience in estate litigation acting for both claimants and estates. Contact us if you require further advice on challenging a Will, making a claim for family provision, or defending a dispute about the administration of an estate. Alternatively you can attend one of our free seminars for more information click here.