The Court’s method for determining whether a Will made adequate provision was summarised by Meagher JA (with Ward P and Kirk JA agreeing) in Scott v Scott [2022] NSWCA 182 at [12]–[16]:
Section 59(1)(c) of the Succession Act 2006 (NSW) asks whether a deceased’s Will failed to make “adequate provision for the proper maintenance, education or advancement in life” of an eligible claimant. The terms “adequate” and “proper” are relative—their meaning depends on the applicant’s age, health, lifestyle, and resources, as well as on the estate’s value and the deceased’s other moral obligations (Pontifical Society for the Propagation of the Faith v Scales).
Courts also emphasise two additional principles:
- Financial need is not decisive—it is relevant but not synonymous with “adequate provision.” Adequacy must be judged holistically, not through a simple calculation of needs (Sgro v Thompson[2017] NSWCA 326; Chan v Chan [2016] NSWCA 222; 15 ASTLR 317).
- Testamentary intentions matter—the court must assess adequacy as at the hearing date. Still, it should give considerable weight to the decisions of a capable testator who thoughtfully considered competing claims, since they were best placed to evaluate those circumstances (Sgro v Thompson [2017] NSWCA 326; Slack v Rogan(2013) 85 NSWLR 253; [2013] NSWSC 522).
In essence, determining whether “adequate provision” has been made requires a contextual, evaluative assessment balancing the applicant’s circumstances, the estate’s resources, the claims of others, and the testator’s considered intentions.
Adequate provision, Proper Maintenance
Section 59(1)(c) of the Succession Act 2006 (NSW) asks whether the deceased’s Will has failed to make “adequate provision for the proper maintenance, education or advancement in life” of the claimant. As explained in Singer v Berghouse (1994) 181 CLR 201, this is ultimately a factual inquiry that nonetheless requires a value judgment — the Court must decide whether, in all the circumstances, the claimant has been left without adequate provision for their proper maintenance and advancement.
The plurality in Singer, endorsed in Vigolo v Bostin (2005) 221 CLR 191, observed that “adequate” and “proper” are interrelated but distinct. Determining adequacy requires an evaluation of whether the provision made was insufficient for the level of maintenance appropriate to the applicant, considering factors such as the applicant’s financial circumstances, the size and nature of the estate, the nature of the relationship between the deceased and the applicant, and the competing claims of others.
In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, Dixon CJ emphasised that both “adequate” and “proper” are relative terms. Proper provision depends on the applicant’s age, condition, lifestyle and overall situation; adequacy relies not only on need but also on the applicant’s own capacity to meet that need. The assessment must balance these factors against the size and character of the estate, other moral claims, and the testator’s intended priorities.
Additionally, as noted in Sgro v Thompson [2017] NSWCA 326, an applicant’s financial need is an important consideration, but does not equate to inadequate provision — financial need is only one indicator. Second, the Court’s evaluation occurs at the time of the hearing. Still, the Court should give significant weight to the judgment of a capable testator who gave proper consideration to the claims on their estate. As observed in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253, a testator is often better placed than a court, years later, to assess what level of provision was appropriate; accordingly, the testator’s considered intentions deserve considerable respect.
Estranged Spouse
In New South Wales, the law takes a pragmatic approach to estranged marriages when someone dies without a Will. Under the Succession Act 2006 (NSW), a person remains a spouse for intestacy purposes if they were still legally married to the deceased immediately before death, regardless of whether they were living together or emotionally estranged. Separation alone—without divorce—does not end a spouse’s entitlement to an intestate estate.
As illustrated in The Estate of Smith [2024] NSWSC 725, an estranged but legally married spouse is entitled to the statutory legacy (a CPI-adjusted amount) and a share of any remaining estate, with the children sharing the balance of the estate. The law focuses on formal marital status, not the quality of the relationship at the time of death. Divorce, by contrast, would completely remove the spouse’s entitlement under intestacy.
This framework reflects the legislature’s intent to balance certainty and fairness: legal status governs distribution, while equitable relief—through a family provision claim—remains available if the statutory scheme produces hardship or injustice.
The Estate of Charmaine “Shirley” Chie
Charmaine Mary Joan Chie (the deceased) — known throughout her life as Shirley — passed away on November 29 2022, aged 88. She was twice married and left behind a blended family: her son, John Veale (the intestate), from her first marriage; two children, David Chie (the plaintiff) and Marilyn Corish, from her second marriage; and several grandchildren. Another child from her first marriage, Diane Veigel, had predeceased her in 2017 but was survived by her partner, Fay Hennessy.
The Deceased’s Testamentary Intentions
The deceased became the owner of the Bulli property after her husband, Peter Chie, passed away in April 2001. She later told her children — Diane, Marilyn, and the plaintiff — that she intended to leave the property to the intestate, a decision that the others felt was unfair.
In an affidavit sworn in February 2024, Marilyn recalled a conversation with the deceased about two months before her death. The deceased told Marilyn she had no money left and that the house would go to the intestate. When Marilyn protested that this was unfair, the deceased replied firmly
“That’s the way it is, and I am not going to discuss it further.”
When Marilyn asked about the intestate’s estranged wife, Vicky (Maria Victoria Veale, the defendant), the deceased responded
“Vicky (the defendant) is to get nothing, and I have changed my Will to reflect this.”
The Court accepted Marilyn’s evidence, though there was no proof that the deceased ever made a new Will. Her last known Will, handwritten and dated December 4 2008, remained unchanged. That document made clear that the deceased did not intend to benefit the defendant. It stated that if the intestate died before her, the executor should sell the Bulli property and the proceeds divided among Diane, Marilyn, the plaintiff, and the intestate’s five children.
However, the deceased likely did not anticipate what later occurred — that the intestate would outlive her but die before the grant of probate, and that the defendant, despite their long separation, would still have a statutory entitlement to part of the intestate’s estate.
The deceased made her last Will on December 4, 2008, appointing her sons, the intestate and the plaintiff, as executors. She left her Bulli home and caravan to the intestate and divided her remaining cash between her daughters, Diane and Marilyn, and the plaintiff. The Will also stated that if the intestate died before her, his share of the Bulli property should pass to his children. At the time of her death, the deceased’s estate consisted mainly of the Bulli property (valued around $1.99 million), a caravan worth about $4,000, and roughly $44,000 in cash.
Intestate Estate
The intestate died only four months later, in March 2023, without leaving a Will. The defendant, the intestate’s estranged wife, applied for letters of administration to manage the deceased’s estate, as the intestate had been named one of the deceased’s executors. Assuming the registry would grant letters of administration, the defendant entered into a contract to sell the Bulli property for $1.995 million.
Meanwhile, the plaintiff and Marilyn both made claims for further provision from their mother’s estate under section 59 of the Succession Act 2006 (NSW). Marilyn later withdrew her claim, leaving the plaintiff as the sole applicant. Because of his claim, the plaintiff also renounced his right to act as executor. The Court later appointed the defendant, the intestate’s widow, to represent the estate during the proceedings.
The plaintiff is now seeking a lump-sum provision of between $300,000 and $600,000, arguing that his share of the cash in the deceased’s Will is inadequate given the size of the estate. The defendant, representing the estate, opposes the claim and argues that any order for further provision should not exceed $100,000.
Family Provision Claims: The Legal Test
As the deceased’s son, the plaintiff qualifies as an eligible person under section 57(1)(c) of the Succession Act 2006 (NSW) and is entitled to apply for a family provision order from the deceased estate. Under section 59 of the Act, the Court can only make such an order if it finds that the deceased’s Will did not make adequate provision for the plaintiff’s proper maintenance, education, or advancement in life. If the Will meets that threshold, the Court then decides — using its discretion — whether to make provision, and if so, the appropriate amount.
The family provision process in the Courts involves a careful, fact-based assessment guided by key cases, including Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, Vigolo v Bostin [2005] HCA 11; 221 CLR 191, and Scott v Scott [2022] NSWCA 182. The Court’s task is not to calculate financial need alone but to make an evaluative judgment about what is “adequate and proper” provision in all the circumstances.
Factors considered include the applicant’s financial position, relationship with the deceased, the size of the estate, and the competing claims of other beneficiaries.
The law also recognises that the testator’s own assessment deserves respect. As explained in cases like Sgro v Thompson [2017] NSWCA 326, the intentions of a capable testator who considered the claims on their estate should be given significant weight.
The Court’s Consideration
The Court considers a range of factors provided in section 60(2) of the Succession Act 2006, when assessing whether the Will maker provided adequate provision, including:
- the nature of the relationship between the deceased and the applicant;
- any moral or financial obligations owed to the applicant and other beneficiaries;
- the size and nature of the estate;
- the applicant’s financial circumstances, earning capacity, and needs (and those of any dependants);
- the applicant’s age, health, and contributions (financial or otherwise) to the deceased;
- any previous provision made by the deceased; and
- The deceased expressed testamentary intentions.
The Court must also consider the interests of all beneficiaries — the people chosen by the deceased to receive her estate — as their entitlements compete with the applicant’s claim. If beneficiaries do not disclose their financial circumstances, the Court may infer that they are self-sufficient.
Competing Interests
In Chie v Veale [2025] NSWSC 1143, the intestate’s estate is the primary beneficiary of the deceased’s estate. His widow, the defendant, their three children (Benjamin, Cassandra, and Sheree), and the intestate’s two sons from a previous marriage (John and Jason) effectively bear the cost of any additional provision awarded to the plaintiff. The Court may therefore take their financial circumstances into account even though they are not direct beneficiaries under the deceased’s Will.
Adult Children and Family Provision
When an adult child applies for family provision, the Court applies long-standing principles, summarised by Hallen J in Camernik v Reholc [2012] NSWSC 1537 and approved by the Court of Appeal:
- A parent’s obligation changes once a child becomes independent, but emotional and moral ties continue.
- The community generally expects parents to support their children. At the same time, they are young, perhaps by assisting with education or helping them start in life, but not to provide lifelong financial support.
- However, if an adult child has fallen on hard times, or has limited means or poor health, and the estate can afford it, the Court may expect some provision as a safety net or buffer against hardship.
- The applicant’s financial security, health, earning capacity, and obligations to others are all relevant considerations.
- The adult child does not need to show “special need,” but must demonstrate justification of provision on the balance of probabilities.
Estate Costs and Administration
The defendant, as administrator of the deceased’s estate, estimated the legal and administrative costs of approximately $6,960 for her letters of administration application, as well as her solicitor’s costs for these proceedings, at $125,000 on an indemnity basis.
Deceased’s Family Relationships and Obligations
The deceased was the mother of the plaintiff and the other beneficiaries named in her Will. While both parents were alive, the plaintiff visited regularly despite long work hours. Following Peter’s death in 2001, the intestate and the defendant moved into the deceased’s Bulli property, which made the plaintiff’s visits uncomfortable because of his strained relationship with the intestate. Nevertheless, the plaintiff continued to visit and maintain contact, giving gifts and calling regularly.
The deceased rarely visited the plaintiff’s family at their Albion Park home and was preoccupied with the intestate and his family. This tension caused the plaintiff to cease contact for a year in 2021, but they reconciled in 2022 and visited the deceased every couple of months and frequently during her hospital stays. The Court accepted the plaintiff’s unchallenged evidence that he was a devoted son who maintained a relationship with the deceased despite her apparent favouritism towards the intestate. Williams J rejected the defendant’s evidence, deeming it unreliable and biased, and denied the plaintiff’s involvement.
The plaintiff’s Financial Position and Needs
The plaintiff, aged 68, was born with a limb deformity attributed to thalidomide exposure, which has limited his employment options. Despite this, he has worked continuously, most recently as a truck driver, earning $850–$1,300 net per week, which barely covers his monthly expenses of about $5,000. He received a redundancy payment of $93,291 in late 2024 and owns his Albion Park home, valued between $600,000 and $830,000, mortgage-free. He also holds superannuation of $258,000, vehicles worth $22,000, and joint savings of $1,800. He owes $100,000 to his sister Fay, which the Court found to be a genuine loan.
The registered owner of a Tullimbar property, which the plaintiff purchased on behalf of his son Zachary when Zachary faced imprisonment and was unable to complete the purchase. The Court accepted that the plaintiff held the property effectively on trust for Zachary, meaning it is not part of the plaintiff’s assets. The plaintiff’s wife, Michelle, who is now unemployed, has approximately $94,000 in total savings and superannuation.
Suffering from several health issues — including heart disease, diabetes, and arthritis — and requires ongoing medication. The plaintiff also faces costly dental work and upcoming hernia surgery. He wishes to retire but cannot afford to do so. With hopes of funding home repairs, purchasing an $80,000 caravan, and establishing a small contingency fund, Williams J found no evidence of misconduct by the plaintiff that would affect his entitlement to family provision.
Marilyn’s Position
Marilyn, the plaintiff’s sister, supported his family provision claim and did not raise her own financial circumstances as relevant.
The intestate’s Estate and the defendant’s Entitlements
Following the intestates death, his estate is the primary beneficiary of the deceased’s estate. Thus, any provision to the plaintiff reduces the amount available to the intestate estate, and therefore to the defendant and the intestate’s five children. As the intestate’s surviving spouse, under the Succession Act 2006 (NSW), the defendant is entitled to:
- The intestate’s personal effects,
- a statutory legacy (estimated at $550,000), and
- half of any remaining estate, with the other half divided among his children.
Assuming the deceased’s estate consists mainly of the Bulli property valued at $1.995 million, without the plaintiff’s family provision order, the defendant’s share from the intestate’s estate could be approximately $1.27 million.
The defendant, as administrator, settled a $257,500 claim by the intestate’s son, Jason, but provided no evidence to indicate whether this action reduced her entitlement.
The defendant’s Circumstances
Moving from the Philippines in 1988 to marry the intestate. The defendant, now 53, lived at the Bulli property with the deceased for many years rent-free. Although claiming to have been the deceased’s carer, Williams J preferred the evidence of Marilyn and the plaintiff that the deceased required little assistance until her final years.
Working as a cleaner for NSW Health and private clients for many years, later transitioning to administration work at Wollongong Hospital, earning $897 net per week. The defendant has arthritis, high blood pressure, and other health issues, but remains employable. Assets include $5,000 in savings, a car, and jewellery worth $20,000, as well as superannuation of $39,000, and debts of approximately $32,000.
The defendant’s adult children are financially independent; however, she needs between $890,000 and $960,000 to purchase a modest townhouse and an additional $175,000 for furniture, superannuation top-up, and contingencies.
Credibility and Court Findings
The Court generally found the plaintiff’s evidence credible and consistent, while the defendant’s evidence was often exaggerated or unreliable. The judge accepted that David maintained a caring relationship with Shirley, had genuine financial need, and faced health constraints. At the same time, Williams J dismissed the defendant’s claims concerning her caregiving role and the plaintiffs’ absence.
Williams J accepted that the plaintiff, aged 68, had worked hard his entire life in physically demanding jobs but could no longer continue due to severe hip and shoulder pain. Despite having about $350,000 in superannuation and Michelle’s $94,000 in savings, the Court found that this was insufficient for a secure retirement, especially given the plaintiff’s $100,000 debt to Fay, the need for repairs to the Albion Park property, and the lack of any contingency fund for medical or unforeseen expenses. Williams J held that the community would expect the deceased, his late mother, to have made some provision for the plaintiff’s comfort and security in retirement, finding that her Will failed to make adequate provision for his proper maintenance and advancement.
Any provision in the plaintiff’s favour would reduce the share of the intestate’s estate, which mainly benefits the defendant. However, the defendant had already lived rent-free for many years, had no dependents, and would still receive around $1.27 million from the intestate’s estate following the order.
Court Orders
Balancing these factors, Williams J awarded $450,000 to the plaintiff from the deceased’s estate — payable from or upon sale of the Bulli property — to allow for a comfortable retirement, meet future medical costs, and provide a financial buffer—the question of costs for later written submissions.