In Western Australia, the Family Provision Act 1972 (WA) provides “eligible persons” the right to challenge a deceased estate if they believe they’ve been inadequately provided for. Under the Family Provision Act 1972 (WA), specific individuals can apply to the Supreme Court for a larger share of an estate. Including the deceased’s married or de facto partner and a former married or de facto partner if they were receiving or entitled to maintenance from the deceased. Additionally, the deceased’s children, stepchildren, and, in some circumstances, grandchildren are eligible to make such an application. Lastly, the deceased’s parents also have the right to seek a larger estate share.
What counts as “proper” provision in Western Australia ultimately comes down to whether the applicant, considering their finances, their relationship with the deceased, the size of the estate, and whether anyone else had a competing claim believe they haven’t received adequate provision for their proper maintenance, support, aqaaeducation, or advancement in life.
A successful Family Provision Claim in Western Australia requires a claimant to meet specific criteria.
First, the claimant must be an eligible applicant under the Family Provision Act 1972.
Second, the applicant demonstrates the deceased’s moral obligation to support them, accounting for the estate’s size and other beneficiaries’ financial needs.
Additionally, the claimant must provide compelling evidence of their financial need to strengthen their Family Provision Claim.
Singer v Berghouse
In Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201; (1994) 123 ALR 481; (1994) 68 ALJR 653, the High Court determined that resolving family provision disputes involves a two-step process, as stated by Mason CJ, Deane, and McHugh JJ (at [18]).
The initial stage requires evaluating whether the financial provisions made under the deceased’s will were suitable, taking into account factors such as
“the applicant’s financial situation, the size and characteristics of the deceased’s estate, the entirety of the relationship between the applicant and the deceased, and the relationship between the deceased and other individuals who have legitimate claims to their estate.”
The key question is whether the applicant has received sufficient provisions for proper maintenance, education, and advancement in life.
The court needs to be “mindful” that, in certain situations, “an order may be denied even if the applicant is found to have been left without adequate provision for proper maintenance,” for example, when there are no assets, and issuing an order would impact the testator’s arrangements with creditors.
Mead -v- Lemon
Olivia Mead, daughter of the late mining magnate Michael Wright, brought a claim under the Family Provision Act seeking a larger share of her father’s $400M+ estate. Although she had been left $3M, part of which had already been advanced for a commercial property, the estate would pay the remainder in instalments into a trust with highly restrictive and arguably oppressive terms. These included forfeiture if Olivia engages in certain behaviours, such as using drugs, joining a non-traditional religion, or becoming an alcoholic. The trust also imposed limits on educational support and access to capital, leaving Olivia unable to use the trust funds for basic needs like housing.
In Mead -v- Lemon [2015] WASC 71, Master Sanderson held that the Will failed to make adequate provision for Olivia, awarding her $25M, finding the trust structure posed a real risk that she could receive nothing, despite the vast size of the estate. Rejecting the notion that an award must be strictly limited to “adequate” maintenance, the Master emphasised that the Court’s discretion under the Act was broad, and noted that the scale of the estate played a key role in shaping the judgment. In his view, the amount awarded would provide long-term security for Olivia and her family, consistent with the moral duty owed by the deceased.
In Lemon v Mead [2017] WASCA 215, the WA Court of Appeal reduced the award to $6M, clarifying the correct two-stage approach under the Act.
First, the court must determine whether the will fails to make adequate provision—a factual, threshold question.
Second, if so, the court may only intervene to the extent necessary to ensure proper maintenance.
Buss JA confirmed that the provision must align with the claimant’s foreseeable needs, not the generosity shown to others in the Will, underscored that courts should respect testamentary freedom and only interfere minimally, guided by need rather than entitlement or estate size alone.
Hill v Murray
Recently, in Hill v Murray [2023] WASC 482, a deceased medical practitioner left an estate valued at over $3 million. The deceased’s biological daughter, conceived from a brief relationship, had no contact with the deceased until paternity was confirmed in 2003, resulting in a $21,000 maintenance payment for her ballet training. By the time of the trial, the plaintiff was a professional ballet dancer, married with two children, and had limited net assets of about $125,000 after debts and impending renovation costs.
The Court recognised the plaintiff’s modest financial situation, impacted by the deceased’s estrangement. A competing claim from the deceased’s former de facto partner, who had a stronger moral claim but less financial need, was noted. Seaward J awarded the plaintiff $1.1 million to help with mortgage and family expenses, denying a larger claim of $1.583 million, emphasising that the estate wouldn’t cover all voluntarily incurred debts.
Hill v Murray [2023] WASC 482 focused on ensuring adequate provision for claimants while balancing testamentary freedom and moral expectations of parental support. It underscores the possibility for estranged adult children to receive provision, especially when the estrangement results from the deceased’s actions, although tailoring such provision to actual needs.
$1.1 million was enough to pay off a mortgage, renovate a home to suit a young family, and offer a small buffer. It wasn’t enough to clear all debts or cover litigation costs. Seaward J made it clear: adult children don’t get a windfall. They get what they need to stay afloat—nothing more.
The Appeal
In Jennifer Patricia Murray as executor of the estate of Alec Kumar Sodhy—v—Hill [2025] WASCA 77, the Court of Appeal clarified the scope of the appeal. In a 2007 Will, Alec Sodhy, who died in November 2016, left his entire estate to Jennifer Murray, his long-term de facto partner and the appellant. The pair had been together since at least 1983 and had no children together or from other relationships.
The respondent, Claire Hill, born in 1983, is the deceased’s only child. She had no relationship with the deceased, and they never spoke during his lifetime. The deceased’s Will made no provision for the respondent.
In 2017, the respondent sought family provision from the estate under s 6(1) of the Act. Following a three-day trial in 2023, Seaward J ordered that the 2007 Will be amended via codicil to grant the respondent $1.1 million from the estate (Hill v Murray [2023] WASC 482).
The appellant did not contest Seaward J’s conclusion that the deceased’s Will failed to make adequate provision for the respondent. Instead, the appellant limited the appeal to the second stage under s 6(1) of the Family Provision Act 1972, which involves the court’s discretion to determine the amount of provision for the applicant affirmed in Singer v Berghouse [1994] HCA 40; and Lemon v Mead [2017] WASCA 215.
Discretion in Appellate Courts
To overturn a discretionary decision on appeal, the appellant must demonstrate the trial judge’s error in exercising that discretion. A difference in opinion is not enough; the appellant must show that the trial judge applied the wrong legal principle, considered irrelevant factors, overlooked relevant ones, misunderstood the facts, or reached an unreasonable or unjust decision.
One of the most influential decisions in Australian law, House v The King (1936), HCA 40; 55 CLR 499, is best known for establishing when an appeal court can overturn a judge’s discretionary decision, especially in sentencing.
The case involved Everard House, who had been convicted under the Bankruptcy Act 1924 and sentenced to three months’ imprisonment with hard labour. He appealed to the High Court, arguing that the sentence was too harsh.
While the High Court ultimately upheld the original sentence, the case is famous for its clear statement of principle: appellate courts cannot simply substitute their view for that of the trial judge. Instead, they must find that the original decision involved a discretionary error, such as applying the wrong legal principle, considering irrelevant factors, failing to consider something important, or reaching an unreasonable or unjust outcome.
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made while exercising discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed. The appellate court may exercise its discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of the first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
House v The King, 55 CLR 505
The majority (Dixon, Evatt & McTiernan JJ) identified five errors that would lead the appellate court to exercise its discretion in substitution for that of the sentencing judge:
1. The judge acted on a wrong principle
2. The judge allowed extraneous or irrelevant matters to guide or affect him,
3. The judge mistakes the facts
4. The judge does not take into account some material consideration, or
5. The sentence is unreasonable or unjust.
This five-part test on judicial discretion, exercised soundly, is cited regularly in appellate Courts and isn’t about perfect fairness. Courts don’t remake decisions just because they’d have gone another way. And adult children with mixed histories and modest prospects should note: the law might give you something, but it won’t provide you with everything.
The decision
In Jennifer Patricia Murray as executor of the estate of Alec Kumar Sodhy—v—Hill [2025] WASCA 77, the Court of Appeal firmly rejected the argument that the $1.1 million awarded to the deceased’s adult daughter was excessive or unjust. The appellant’s complaint centred on the respondent’s financial choices after the deceased’s death—such as increased debts and unsuccessful litigation—but the Court found these arguments lacked factual foundation.
Notably, Seaward J had not awarded funds to cover High Court costs, nor accepted that the respondent had deliberately worsened her financial position to strengthen her claim. The evidence showed the respondent’s net economic position had improved. The Court of Appeal also emphasised that, in assessing family provision claims, it must consider the entirety of the circumstances—not just isolated financial conduct—when evaluating whether an order is unreasonable or discloses legal error.
Taking into account the size of the estate, the absence of any competing claim of financial need from the appellant, and the relatively modest financial position of the respondent, the Court of Appeal found the award to be a legitimate and proportionate exercise of discretion under s 6(1) of the Family Provision Act 1972 (WA) dismissing the appeal.