Singer v Berghouse(1994) 181 CLR 201 remains a foundational authority in Australian family provision law. Decided by the High Court on 14 September 1994, the case established the familiar two-stage approach to determining whether a person has been left without adequate provision from a deceased estate and, if so, what further provision should be made.
Although Singer v Berghouse concerned the former Family Provision Act 1982 (NSW), the High Court’s principles continue to inform modern family provision legislation, including Chapter 3 of the Succession Act 2006(NSW).
A person seeking to make a family provision claim in New South Wales must first qualify as an “eligible person” under s 57 of the Succession Act 2006 (NSW). This includes categories such as
- a spouse or de facto partner,
- a child,
- a former spouse and,
- in certain circumstances, a grandchild or other person who was dependent on the deceased.
An application must ordinarily be commenced in the Supreme Court of NSW within 12 months of the deceased’s death under s 58 of the Succession Act 2006, although the Court may permit a late application where sufficient cause is shown. Most family provision proceedings are referred to mediation before any final hearing, allowing the parties to resolve the dispute without the expense and uncertainty of a trial.
Importantly, legal costs are not automatically paid from the estate. If a claim is unsuccessful, the Court may require the claimant to bear their own costs and, in some cases, contribute to the estate’s legal costs.
Two-stage test
At the first stage, the court must determine whether the provision made for the applicant is inadequate for their proper maintenance, education and advancement in life. The court makes that assessment at the hearing and exercises a broad evaluative judgment. The court considers matters including the applicant’s financial circumstances and needs, the size and composition of the estate, the nature of the relationship between the applicant and the deceased, and the competing claims of other beneficiaries.
If adequate provision has already been made, the claim fails. If it has not, the court proceeds to the second stage and determines what provision, if any, ought to be made from the estate. This is a discretionary inquiry into the nature and amount of provision appropriate in all the circumstances.
Singer v Berghouse insists that family provision proceedings are not simply concerned with whether a Will appears unequal or unfair. The statutory question is whether the applicant has been left without adequate provision for their proper maintenance and advancement, assessed in the context of the estate and the competing claims upon it. The concepts of “adequate” and “proper” are therefore relative rather than fixed: what may be sufficient in one estate may be inadequate in another.
The Court’s power under the Succession Act to make provision is broad, and its exercise can have far-reaching implications, including overriding a testator’s clearly expressed wishes. The power must be exercised in a principled manner, in accordance with the Act as the Courts construe and apply it. It would be contrary to principle to order provision merely because the estate can afford it or because the impact would be limited for those adversely affected. The Court must conclude, on a principled basis, both that inadequate provision has been made and that provision should be made: Singer v Berghouse (No 2) (1994) 181 CLR 201.
The matter
Freeman v Freeman [2026] NSWSC 1127 involved a modest family provision claim where litigation costs substantially exceeded the amount claimed.
The plaintiff, John Freeman, sought family provision of $90,000 from his late father’s estate. The matter was heard over two days following an unsuccessful court-annexed mediation. The plaintiff relied on 11 affidavits, six sworn by himself, together with expert evidence from an ophthalmologist and a mortgage broker experienced in reverse mortgages. The defendant- the plaintiff’s brother Mark- relied on nine affidavits, five of his own.
The plaintiffs’ solicitors acted on a no-win, no-fee basis with an initial entitlement to a 25 per cent uplift fee. Estimated party-party costs to the conclusion of the hearing were approximately $172,569, later capped at $170,900. Solicitor-client costs were approximately $197,685, including uplift $223,625. The uplift was ultimately waived.
The plaintiff’s recoverable costs were nearly double the amount claimed. His solicitor-client costs were more than twice the value of the substantive claim.
Hammerschlag CJ in Eq observed that the plaintiff professed to have very limited financial resources and appeared to have no realistic capacity to meet either his own costs or the defendants’. By contrast, the defendant had already paid more than $50,000 to his lawyers, representing most, if not all, of his savings.
The defendant’s solicitors informed Hammerschlag CJ in Eq that they would not charge the defendant further. His Honour noted that in family provision litigation, the benefit an applicant obtains may be outweighed by legal costs, particularly where the estate is expected to bear those costs.
“With monotonous regularity, the Court must deal with family provision claims where any positive result the claimant might achieve is dwarfed by the claimant’s legal costs and there is an expectation that legal costs, or a material portion of them, will be paid out of the estate because the claimant cannot afford them” at [6]
Hammerschlag CJ in Eq concluded that the plaintiff’s claim was without merit.
Nature of the family provision dispute
The judgment contains broader observations on the conduct of family provision claims.
Hammerschlag CJ in Eq observed that family provision proceedings frequently involve competing accounts of family relationships. An excluded child may describe a close and supportive relationship with the deceased, while a sibling who provided care may present a different perspective.
Typical questions include the frequency of the claimant’s visits, their assistance to the deceased, the deceased’s inclusion in family events, and whether the primary carer impeded others’ relationships with the parent.
His Honour noted that parties may exaggerate or minimise their accounts. Contemporaneous and objective evidence generally carries greater weight than retrospective descriptions.
In Freeman, Hammerschlag CJ in Eq accepted the defendant’s account of the family relationship and found the plaintiff’s assertions regarding his relationship with the deceased unconvincing. With monotonous regularity, the Court must deal with family provision claims where the claimant’s legal costs dwarf any positive result the claimant might achieve. There is an expectation that legal costs, or a material portion of them, will be paid out of the estate because the claimant cannot afford them.
The deceased and his estate
Kenneth Vivian Freeman (the deceased) died on 17 May 2024, aged 98. The deceased was married to Elsie Freeman for 66 years until her death in July 2010. They had five children: Carol, Kenneth, John, Robyn and Mark.
The deceased estate was worth slightly more than $1.3 million. The family home at Carrington Street, Revesby, represented almost its entire value, with an agreed value of $1.3 million. The remaining assets consisted principally of a 2000 Toyota Camry, some shares and cash.
The deceased’s Will, dated 7 February 2011, appointed the defendant as executor and left him the entire estate absolutely.
The Will included a detailed written statement explaining the reasons for this arrangement.
The deceased recorded that he loved all five of his children, but that the defendant had lived with his parents throughout his life and had cared for both the deceased and Elsie. The defendant was receiving a disability pension and, because of his circumstances and his commitment to caring for his parents, had not accumulated significant assets.
The deceased was particularly concerned that the defendant would otherwise be left without a home following the deceased’s death.
By contrast, the deceased considered his other children to have established themselves independently and, to varying degrees, to be in reasonably comfortable financial positions. The deceased explained that the size and nature of the estate meant he could not adequately provide for the defendant if he also made significant provision for his other children.
The statement also recorded that the deceased received legal advice on the provisions of the Succession Act 2006 (NSW) and carefully considered the consequences of his decision.
The Court granted the defendant probate on 30 September 2024.
The deceased’s intentions were further documented in two handwritten letters from October 2017. In these, the deceased reiterated his wish that the defendant retain the family home, rejected suggestions that the defendant was preventing him from leaving the property, and described the defendant’s caring for his wellbeing.
The family provision claim
The plaintiff is an eligible person for the purposes of the Succession Act 2006 (NSW) and seeks $90,000 from the estate, including amounts said to be required for rental assistance, medical expenses and contingencies.
The principal issue was evidentiary.
Hammerschlag CJ in Eq did not accept the plaintiff’s portrayal of his relationship with his father. His Honour identified inconsistencies in the plaintiff’s evidence and noted his relatively limited contribution to the deceased’s welfare over many years, including substantial periods during which the plaintiff lived overseas.
His Honour was similarly unconvinced by the plaintiff’s description of his financial hardship.
The evidence showed that the plaintiff retained a motor vehicle overseas and had made several international trips, which was inconsistent with his claimed financial hardship.
An attempt was made to suggest that items collected by the plaintiff’s mother, Elsie, represented valuable estate property from which provision could be made without affecting the house. Hammerschlag CJ in Eq did not accept this.
The plaintiff claimed that Elsie had accumulated hundreds of antiques and collectables, including Royal Doulton items, vintage plates, silver snuff boxes and antique vanity boxes. Photographs the defendant provided indicated the items were of modest value. The plaintiff ultimately accepted that the items had no meaningful commercial value.
If valuable personal property had existed, the Court might have made a provision without affecting the defendant’s’s interest in the home. No such property was available.
The proposed provision
The Court found that the individual components of the plaintiff’s $90,000 claim were inadequately supported. The evidence did not support the claimed amounts for rental assistance and medical expenses. Hamerschlag CJ at Eq noted that aspects of the claim were unsupported and inadequately formulated. Additionally, His Honour was not prepared to require the defendant to obtain a reverse mortgage over the Revesby property to fund an award to the plaintiff.
Requiring a reverse mortgage would have reduced the defendant’s equity, imposed financial consequences, and conflicted with the deceased’s testamentary arrangement to secure the defendant’s accommodation.
Testamentary intention mattered
A key feature of the case was how clearly the deceased documented his intentions.
The Will did not leave one child the estate without explanation. The deceased had expressly considered the position of all five children. Identified financial vulnerability, the care the defendant had provided to both parents and his concern that the defendant would otherwise be left without a home. The deceased had obtained legal advice about family provision legislation and recorded his reasoning contemporaneously.
Hamerschlag CJ at Eq was dealing with a deliberate and informed testamentary decision, not an unexplained exclusion.
However, a deliberate and informed testamentary decision did not make the Will immune from a family provision claim. Testamentary intention cannot displace the statutory jurisdiction. It was, however, an important part of the circumstances against which the adequacy of the provision for the plaintiff and the defendant’s competing claim had to be assessed.
The Court’s decision
Hamerschlag CJ at Eq’s decision considered the entirety of the circumstances, including:
- the plaintiff’s financial and personal position, so far as it had been properly disclosed;
- the nature of the plaintiff’s relationship with the deceased;
- the plaintiff’s limited contribution to his father’s welfare;
- the defendant’s relationship with the deceased and his long period as sole carer;
- the defendant own circumstances and life expectancy;
- the possibility that the plaintiff might receive assistance from his children;
- the size and nature of the estate; and
- the terms of both the deceased’s Will and explanatory statement.
Particular significance was attached to the fact that practically the whole estate consisted of the home in which the defendant lived.
Hamerschlag CJ at Eq was not satisfied that the deceased had failed to make adequate provision for the plaintiff. Nor was His Honour satisfied that the particular provision the plaintiff sought, or any other provision, ought to be made. The claim was therefore dismissed. His Honour provisionally ordered the plaintiff to pay the defendant’s costs, subject to either party seeking a different costs order within seven days.
Costs and the economics of family provision litigation
A notable feature of Freeman is Hamerschlag CJ at Eq analysis of the economic aspects of the proceeding.
The plaintiff’s claim for $90,000 resulted in party-party costs of nearly $171,000 and solicitor-client costs of almost $200,000, even after the uplift was not applied.
A conditional cost agreement may include an uplift fee, excluding unpaid disbursements (LPUL s 182(1)). This additional payment is due only if the matter succeeds and compensates the law practice for the risk of the agreement.
For litigious matters, an uplift fee is permitted only if the practice reasonably believes success is likely. It must not exceed 25% of total legal costs (LPUL s 182(2)).
The agreement must state how the fee is calculated and include an estimate—or, if impractical, a range—and explain the main variables affecting it (LPUL s 182(3)(a)–(b)).
Due to the plaintiff’s asserted lack of means and the conditional costs arrangement, he faced minimal practical financial exposure. In contrast, the defendant spent most of his savings defending the testamentary arrangement his father chose.
The judgment records judicial concern about family provision litigation proceeding on the basis that the estate can fund both provision and legal costs. Hamerschlag CJ at Eq emphasised the need to manage litigation costs and keep them proportionate to the value of the claim and the estate. Practitioners should consider early mediation, settlement conferences, and clear communication with clients about likely financial outcomes. Applying proportionality, so that effort and expense are balanced against what is at stake, can help prevent costs from eroding any practical benefit. These measures reduce the risk that litigation benefits legal representatives at the estate’s expense and help practitioners advise clients on the economic risks of proceeding.
The statutory jurisdiction does not operate on that basis.
The existence of an estate with sufficient value to support an award does not, by itself, justify interference with the deceased’s testamentary arrangements. The Court should not order a provision solely because the financial impact on the beneficiary appears manageable.
As Singer v Berghouse (No 2) (1994) 181 CLR 201 makes clear, the Court must first be satisfied that the provision made for the applicant was inadequate for their proper maintenance, education or advancement in life. Only then does the question arise whether, and in what amount, further provision ought to be made.
Practical takeaway
Freeman v Freeman illustrates several enduring features of family provision litigation.
A contemporaneous statement explaining a testator’s reasons for preferring one beneficiary can carry significant evidentiary weight, particularly where it demonstrates that the testator considered the circumstances of all family members and the possibility of a family provision claim. An effective statement is specific, addresses each potential beneficiary’s position, and records that the testator received independent legal advice. Such detail assists the Court and enables practitioners to provide practical advice when structuring testamentary intentions.
The decision of Hammerschlag CJ at Eq demonstrates the importance of objective evidence. Assertions of closeness, financial hardship, or expenditure needs may not withstand scrutiny if contemporaneous evidence indicates otherwise. Persuasive objective evidence includes financial records, care logs, correspondence, and documents created at the relevant time. For practitioners, compiling and presenting such material can significantly affect a claim’s strength.
The case confirms that a family provision application is not justified solely because the estate can meet it. The statutory jurisdiction requires a principled finding of inadequate provision before the Court may interfere with testamentary choices.
This principle has practical implications for practitioners advising claimants and executors. Advise Claimants that the size or liquidity of the estate does not guarantee success; relief is unlikely unless evidence supports a finding of inadequate provision. Claimants must be realistic about the threshold and the need for credible, objective evidence. Advise executors and beneficiaries that a well-constructed Will, supported by documented testamentary intention, is likely to withstand challenge if it meets statutory requirements. Setting clear expectations about prospects, costs, and outcomes can help avoid protracted litigation and support informed decision-making.
In Freeman v Freeman[2026] NSWSC 1127, that threshold was not crossed.