Exception? Unquestionably, Indubitably; Chorley!

Luigi Borazio (the “testator”), died in February 2007, leaving his widow (and third wife) Rosa a life interest and the chattels in their family home in Blacktown plus $10,000. Rosa was to pay all outgoings. The balance of the estate was given to the testator’s four daughters by his first wife equally. Rosa commenced a claim under the Family Provision Act 1982 submitting that Luigi did not make adequate provision for her in his last will. The Court dismissed her claim.

Janet Pentelow, a barrister, was engaged to appear by Bell Lawyers in the matter; a dispute arose between Pentelow and Bell as to the payment of Ms Pentelow’s fees, leading to recovery proceedings. Although initially unsuccessful, on appeal the New South Wales Supreme Court ordered that Bell Lawyers pay Ms Pentelow’s professional costs for the Local and Supreme Court proceedings.

Pentelow subsequently forwarded a memorandum of costs to Bell pursuant to the Supreme Court’s costs orders, which included sums for costs incurred on her own behalf and the provision of legal services Pentelow provided in the Local Court and Supreme Court proceedings. Although Pentelow was represented by a solicitor in the Local Court proceeding, and by solicitors and senior counsel in the Supreme Court proceeding, she had undertaken preparatory legal work and had attended court on a number of occasions.

Generally, a litigant may recover as costs their solicitor’s fees but not for the value of their time spent in litigation. Under an exception to the general rule, commonly referred to as “the Chorley exception” a solicitor may recover costs for their own time, as a litigant in person who has some professional skill in respect of the time spent exercising that skill.

In London Scottish Benefit Society v Chorley (1884) 13 QBD 872 the English Court of Appeal held that a litigant in person who was a solicitor was entitled on taxation to the same costs as if he had employed a solicitor, even though he had undertaken the tasks himself, therefore, employing another solicitor was unnecessary. Chorley is based on purely pragmatic grounds that where there has been a measurable expenditure of professional skill and labour by the solicitor, that would otherwise have been completed by another employed solicitor that, if successful, could be recovered.

Bell refused to pay the costs claimed for the work personally undertaken by Pentelow. A costs assessor rejected Pentelow’s claim for the costs of the work she had performed and that decision was affirmed on appeal before the Review Panel and the District Court of New South Wales.

Pentelow sought judicial review of the decision of the District Court in the Court of Appeal of the Supreme Court of New South Wales. The Court of Appeal, by majority, held that Pentelow was entitled to rely upon the Chorley Exception notwithstanding that she was a barrister and not a solicitor.

The New South Wales Court of Appeal held that the Chorley Exception extends to barristers as well as solicitors as admission to practice law is uniform for both barristers and solicitors under the Legal Profession Act 2004 (NSW). The self-represented work performed by solicitors and barristers is similar; the Chorley Exception applies where an otherwise eligible costs applicant performed legal work themselves, such as drafting pleadings and affidavits, as prescribed in the New South Wales Bar Association Barristers’ Conduct Rules.

Bell Lawyers appealed to the High Court; which unanimously held that the Chorley exception should not be extended to the benefit of barristers. Further, a majority of the Court held that the Chorley exception should not be recognised as part of the common law of Australia because it is an anomaly that represents an affront to the fundamental value of equality of all persons before the law and cannot be justified by the considerations of policy said to support it. In addition, the anomalous nature of the Chorley exception is inconsistent with the statutory definition of “costs” in s 3(1) of the Civil Procedure Act 2005 (NSW).

Family provision -An Annuity may not be Adequate

In a recent decision, the New South Wales Court of Appeal had to decide whether the annuity given by the deceased to his widow (‘the Appellant’) under his will was adequate to provide for the appellant’s proper maintenance and advancement in life.

An annuity pays you a guaranteed income for a period of time of your choice; you can choose whether you want to receive payments for the rest of your life, or for a fixed number of years. An annuity provides certainty, as you know how much income you’ll receive and the length of time it will last.

Geoffrey Steinmetz married his second wife Gayle in late 2011, following a long de facto relationship that had begun in 1988. The couple were financially independent during their marriage, however, Geoffrey paid for their mutual entertainment, holiday and household expenses. Gayle had provided full-time care for Geoffrey over a period of 15 years, during which he had suffered ill health.

Geoffrey made his last Will in hospital prior to a life-threatening operation in September 2016 (the ‘Will’); his son-in-law, a solicitor, took instructions and drafted a Will appointing Geoffrey’s two children from his first marriage as the executors and trustees. The Will left Gayle with all of Geoffrey’s personal items including the contents of his house and an annuity of $52,000 per annum (paid quarterly) for the remainder of her life (the ‘Annuity’). His two children were left the residue of the estate. The Will replaced one made 2013, which had provided more generously for Gayle.

When Geoffrey died his estate was valued at approximately $6.8 million.

Following Geoffrey’s death , Gayle (the ‘Applicant’) made a family provision claim under s59 of the Succession Act 2006 (NSW), submitting that the provision under the Will was inadequate for her proper maintenance, education or advancement in life and that although her assets were valued at around $700,000 she was living frugally.

A lower court dismissed Gayle’s application holding that the Annuity provided adequate provision for her proper maintenance by enabling her to continue to live in her home with an expected annual surplus of approximately $34,000.

“She will not have the benefits, the security, the holidays, the comforts and the additional financial advantages that she enjoyed during her relationship with the deceased. But as a matter of law, should she be entitled to expect more?”

Gayle appealed this decision.

The full bench of the Supreme Court of NSW unanimously set aside the lower court’s order, noting adequate provision had not been made for Gayle. In considering the particular circumstances of the case, the Court accounted for ‘the size of the estate, any competing claims, the applicant’s conduct and the applicant’s relationship with the deceased’ including Gayle’s role as Geoffrey’s primary carer over many years, the size of the estate which was large enough to meet all competing claims, as well as Gayle’s desire to relocate for better medical treatment for her own health care.

The Court ordered that a provision of $1,750,000 be set aside for Gayle in lieu of the Annuity (annuity payments made up until the appeal regarded as interim maintenance) finding, that she was capable of managing her own affairs, and therefore it was not appropriate for her to be reliant on quarterly payments made by Geoffrey’s children in their role as Executors & Trustees of Geoffrey’s estate. Importantly the ‘historical..tensions’ between Gayle and at least one of Geoffrey’s children could be exacerbated if she were obliged to have an ongoing relationship with them due to their responsibility for payment of the Annuity.


Phone Message, Audio recording ruled as Informal Will

In January 2017 G aged 35 died following a self-inflicted gun-shot to his head; he was survived by his wife, and two children, aged 8 and 11 years. G was a qualified pilot who owned an aviation business, through which he provided helicopters for mustering and feral animal control.

In the years before his death, G had been involved in several legal disputes concerning the conduct of his business. The stress of those legal disputes impacted on his home life. On the day of his death, his wife J left the family home with her children travelling by way of a police station where she sought a domestic violence order. G took his life later that afternoon.

G’s estate was valued in excess of $1.6 million and comprised his interest in the aviation business, the family home and a small superannuation account. In addition to those assets, G held two life insurance policies with a combined value of $6,000,000. The nominated beneficiary, in each policy, was J.

G had made a will in February 2011 appointing  J as executor and sole beneficiary in the event she survived him by 30 days. Shortly before his death, G called a friend and left a voice mail message asking that his two children receive his life insurance policy in equal shares and that all of his assets should go to his wife. During the recording of that message, G was distressed.

G’s friend retrieved the message and called him; after speaking for some time G ended the call, the friend called G back at 5.24 pm, there was no answer. The friend left a message asking that G call him.

G recorded another message on a mini tape recorder stating his full name and the date and stating  “This is my last Will to be the final one over anything else I’ve got written” He repeated that “every single asset I own” was left to his wife and six million dollar life insurance policy split in two for his son, and daughter, three million dollars each.”

The time at which this recording was made is not known. However, during the recording there can be heard a telephone ringing in the background, consistent with the friend’s attempts to call G back at 5.24 pm.

J sought a declaration, pursuant to Section 18 of the Succession Act 1981 (Qld) (“the Act”), that part of G’s recorded message dictated shortly before his death, forms his last Will and Testament; seeking a grant of letters of administration with that Will, to be made appointing J as administrator. Alternatively, that Probate be granted on the February 2011 Will, with J appointed executor.

Following consideration of the circumstances, the court was satisfied that in making the recorded conversation, G intended that J receive all of the assets of his estate. As the proceeds of the life insurance policies are not assets of his estate, G clearly stated his position in respect of every asset in his estate.

The Court was satisfied that notwithstanding the legal error G made regarding the ability to dispose of the proceeds of the life insurance policies G had the requisite testamentary capacity.  G’s recorded conversation contained a rational, logical disposition of his assets, that nothing in its contents or the surrounding circumstances have given rise to a doubt, sufficient to call into question the existence of the relevant testamentary capacity at the time the recorded conversation was made.

Cy-Pres and the 13th Amendment

I have posted before about the equitable remedies available to courts where  a specific gift within a Will fails; in the instance that no provision exists in the Will for dealing with the residue of the estate, that portion of the Will is treated as if it did not exist and would be distributed as if the deceased died “intestate”.

In most jurisdictions where this occurs, the court can step in and establish a scheme known as a cy près scheme by which a failed gift is constituted a valid charitable trust, and is distributed to an alternate charitable beneficiary that is as closely aligned to the deceased’s intentions as possible.

  • Cy-pres is a doctrine which is applied when the strict terms of a will cannot be carried out and is subject to certain conditions;
  • the testator must exhibit in their will a general charitable intention.
  • there must be impracticability in the fulfilment of the charitable intention of the testator.
  • the condition of the gift that causes the impracticability must not be an essential term of the bequest.


Abolition, was the movement seeking to end slavery in the United States; active both before and during the American Civil War.

Francis Jackson, a Real estate developer and Boston City Councillor was born into an abolitionist family that included siblings Edmund, George, Stephen, Lucretia, and politician William Jackson, who was also against slavery.

Jackson sheltered fugitive slaves in Boston and was involved with the trial of Anthony Burns who had escaped from slavery in 1853 and reached Boston. In 1854 Burns was captured under the Fugitive Slave Act of 1850 and tried in court. Bostonians fiercely resisted the Fugitive Slave Act, and the case attracted national publicity. Federal troops were employed to ensure Burns was transported without interference to a ship headed back to Virginia post-trial.

In his will, Jackson established a Trust to assist among other groups abolitionist’s to

“create a public sentiment that will put an end to negro slavery in this country”.

admonishing the State of  Massachusetts:

“Disregarding the self-evident declaration of 1776, repeated in her own constitution of 1780, that ‘all men are born free and equal,’ Massachusetts has since, in the face of those solemn declarations, deliberately entered into a conspiracy with other states, to aid in enslaving millions of innocent persons”

Four years after Francis Jackson’s death Slavery was abolished in the United States through the 13th Amendment. His brother Edmund Jackson led the call to unwind the anti-slavery trust. However,  in Jackson v. Phillips the Court disagreed and ordered that to best fulfil Jackson’s wishes a cy-pres scheme should be established

“to promote the education, support and interests of the freedmen, lately slaves, in those states in which slavery had been so abolished”.


Main Residence CGT exemption & the Executor

CGT does not apply to the testator’s main residence if:

  1. It is sold within two years; whether or not it is used as a main residence or to produce income during the two-year period.
  2. From the deceased’s death until it is sold, the dwelling is not used to produce income and is the main residence of one or more of the spouse of the deceased immediately before the deceased’s death; or an individual who had a right to occupy the dwelling under the deceased’s will or as a beneficiary, you dispose of the dwelling.

A dwelling is considered to be your main residence from the time you acquire your ownership interest in it if you move in as soon as practicable after that time.

Earlier this year the Commissioner of Taxation extended the time that executors may dispose of the deceased’s main residence and still claim the main residence CGT exemption.

The “safe harbour” decision will assist executors where administration of an estate is delayed due to circumstances beyond their control such as lengthy family provision applications or extensive searches for beneficiaries, that result in delays carrying out their duty to dispose of the deceased’s property.

CGT Safe Harbour Rules

Executors have been granted an additional 18 months to dispose of the property, and will now have up to 42 months to settle the sale of a deceased’s main residence and still claim the exemption without having to seek the Commissioner’s approval if during the first two years post-death, over 12 months was spent addressing one or more of the following circumstances:

• a challenge to the ownership of the property or validity of the Will

• delays in disposal due to a life or other equitable interest

• the complexity of the administration of the estate

• a delay or termination in settlement of the disposal following circumstances beyond the executor’s control.

• The dwelling was listed for sale as soon as practicable after the above circumstances were resolved.

• Settlement occurred within 12 months of listing the dwelling for sale.

And disposal has not been delayed by:

• waiting for a pickup in the property market

• delay due to renovations to improve the sale price

• organising the sale was inconvenient for the executor

• unexplained periods of inactivity during the administration process.

• The extension of time required is no more than 18 months.

• What does this mean for executors?

The commission assumes that If the above conditions are satisfied, the executor is entitled to extend the two-year time limit up to an additional 18 months.

It is important that executors maintain sufficient records to prove they have met the above conditions, should they be called on for a compliance check by the ATO.

It is also important to note that the Commissioner has confirmed it will not entertain even a small delay beyond two years where no relevant circumstances are present.

Intestacy, Defacto & the Factual Matrix

In order for a Court to determine whether two people are in a de facto relationship it may require detailed affidavit evidence (including investigations of telephone and bank records) when assessing the nature and extent of the relationship.

Shirley Gardner died intestate in 2017. Her marriage in 1998 had voided her last known will dated 10 October 1989.

Shirley’s husband predeceased her; similarly, her only child predeceased her.

In 2018 Jose Bernengo claimed that he was Shirley’s surviving de facto spouse and sought letters of administration and a declaration that and was entitled to the whole of the estate.

Jose submitted that he and Shirley had been in a de facto relationship (that they had kept largely secret from the outside world – including members of Shirley’s family) for approximately 10 years up until the time of her death.

Jose split his time between Shirley’s home in Cammeray and his own country property in Rylstone, NSW. However, he spent more time at Cammeray than he did in Rylstone.

Both Shirley’s step-daughter and her neighbour corroborated Jose’s evidence regarding the nature and duration of the relationship.

Shirley’s nephew Edward filed a cross-claim seeking letters of administration and a declaration that Shirley’s other nieces and nephews (and grand-nieces and grand-nephews) were entitled to the whole estate.

Edward submitted that Shirley and Jose were only friends; had not displayed affection towards each other at family events, and although agreeing Jose occasionally stayed at Shirley’s home in Cammeray it was not as often as Jose submitted.

Edward relied upon evidence from hospital admissions where Shirley stated she lived alone.

Edward submitted that in a conversation he had with Shirley she claimed that she “tolerated” Jose as evidence that a relationship between his Aunt and Jose didn’t exist.

Edwards evidence was corroborated by a number of the other nieces and nephews, as well as other family relations and friends.

The Court believed that although superficially a number of these factors suggested that Shirley and Jose had not been in a de facto relationship there was much strongly supportive evidence that they were in a de facto relationship for at least 2 years before Shirley’s death.

The Court ordered that Jose was Shirley’s surviving spouse and was entitled to the entirety of her estate and granted him letters of administration.

Solicitor Drafts Will is Named Executor and Seeks Commission – Court isn’t impressed.

Margaret Szadovszky died, aged 92, in November 2016, leaving one surviving child, Frank, her husband predeceased her. Margaret’s last will, made on 14 January 2009, named her solicitor John Zigouras as her executor, leaving the whole of her estate, to Frank.

John’s legal firm charged the estate $7,699.50 in legal fees for acting in the administration of the estate. The Will did not provide for the executor to engage his own legal firm and to charge full professional legal fees.

John was an experienced, practising solicitor; administration of the estate was straightforward with the court finding there was “no need to arrange the sale of the home, instruct at an auction, clear personal possessions, sort private papers, sell a car, re-home pets, ascertain uncertain financial or taxation information or even arrange the funeral. There was no litigation’.

As we have posted before the role of executor is a fiduciary one; by retaining his own firm, John had a conflict of interest and would be unable to pay legal fees from the estate to his firm in the absence of fully informed consent of the beneficiary. Frank, represented by independent solicitors throughout the administration, gave his consent to John for the legal fees.

John approached Frank seeking an agreement for commission of 1.5 per cent (amounting to about $30,000). Commission is an expense of the estate, payable out of assets like any other expenses, and is incapable of being paid if the estate is fully distributed. By this stage, John had distributed over $1.72 million with $54,000 held pending this claim.

Frank claimed that an amount of $12,777.83 retained until 25 June 2018, should have been distributed over a year earlier; objecting to the $54,000 retained pending finalisation of the taxation and the claim for commission.

An executor is entitled to retain an amount sufficient for a claim for commission at the end of the administration, however, neither the retention of the $12,777.83 or its subsequent release was explained.

The Court didn’t consider that holding on to this amount was significant as the executor is permitted some margin for error, that this amount was required for commission and taxation; it wasn’t flagrant and did not cause a loss to the estate.

However, John failed to produce an itemised bill despite six written request; the Court held that failing to provide details of the legal fees to a beneficiary did not meet the duty to keep a beneficiary informed nor was it acting in good faith.

Similarly, an itemised bill should have been provided in accordance with the obligations imposed by the Civil Procedure Act 2010 (Vic), as without an itemised bill it is impossible to assess whether or not there was any ‘double-dipping’ in this claim.

In exercising its discretion regarding the award of commission the Court held that John’s long delay in making an application, notwithstanding that administration of the estate was fully completed well within the executor’s years as unacceptable. The Court dismissed the application for commission, ordering that John pay both his own and Frank’s costs personally, and not out of the estate.

Family Provision is not straightforward

Pascall Comninos, sought a family provision order out of the estate and notional estate of his brother, Stavrianos, pursuant to Ch 3 of the Succession Act 2006 (NSW) (“the Act”) and sought an order restraining the executor from dealing with the Stavrianos estate pending the determination of the family provision application.

As we have outlined previously in order to successfully make a family provision claim on an estate; a two-stage approach is applied by the Court:

  1. was the provision (if any) made for the applicant ‘inadequate for (his/her) proper maintenance, education and advancement in life’ having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and
  2. the relationship between the deceased and other persons who have legitimate claims on the estate.

Stavrianos left a Will, dated 14 May 2013, Probate of which was granted, on 10 January 2018; the estate had an estimated value of $4,340,622.

Pascall a disability pensioner, was Stavrianos’s younger brother and submitted that he had not received any provision from the estate of either of his parents, even though he had made a substantial contribution to building their estate assets.

Pascall claimed that he had a “very poor, strained and complex relationship” with his mother and “was generally on the outer with her for reasons which I still do not understand”. Similarly, Pascall’s relationship with Stavrianos deteriorated due to a combination of factors including their mother’s influence, following the death of their father in the early 1970s.

The brothers had a falling out over non-payment of wages to Pascall by Stavrianos; who allegedly attacked Pascall with a knife; in the ensuing struggle Stavrianos was “kicked..in his privates” before Pascall left the scene. After which there was little, or no, contact between the brothers for more than 40 years prior to Stavrianos’s death.

Pascall decided to make a claim as he believed he had performed a large amount of work for the accumulation of assets by their parents, which were then transferred to Stavrianos

The Court dismissed Pascalls application with costs as the case was without substance and continuation of the proceedings would be an abuse of process and frivolous, as the Plaintiff’s case cannot possibly succeed. There was very little, if any, contact between the brothers for more than 40 years prior to Stavrianos’s death; nothing in their relationship over that period that creates an obligation, on the part of the deceased, to make provision for the Plaintiff in his Will.

The application amounts to little more than a contention that an obligation was owed to him because he was the deceased’s brother and because the deceased had been favoured by their parents.

It is impossible to conclude that Pascall would be able to establish any factors which, when added to the facts which render him an eligible person, give him the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition.

Equity & the Intestacy of a Beneficiary prior to distribution

As a law student I remember my first week of Equity very clearly. The first case that we studied was Commissioner of Stamp Duties v Livingston [1965] AC. Prior to studying succession law I was perplexed by the decision of the Privy Council regarding the interest held by the widow who was a named beneficiary but died intestate prior to the completion of administration by the executors named in the Will.

Hugh Livingston died in New South Wales in 1948 with real and personal property in both New South Wales and Queensland. Hugh left one-third of his estate (”the estate”) to his widow Jocelyn; who died intestate in New South Wales before the estate could be fully administered, following remarriage, and having taken her new husband’s surname, becoming the late Mrs Jocelyn Coulson.

Upon death a Will Maker’s estate automatically vests with their executors until administration has been completed and the estates assets have been distributed to the beneficiaries named in the Will.

Hugh’s executors held his property as they had not completed administration therefore they could not transfer the residue of the estate to the trustees to hold on trust for Jocelyn.

At the time under Queensland’s tax law, succession duty would be payable on all of Hugh’s Queensland property on both his and Jocelyn’s death if she held a “beneficial interest” in the Queensland property.

Beneficial ownership is an equitable interest in the economic benefit of the property; beneficial owners have a right to income from the property including the proceeds of sale. Legal owners (not always the same as the beneficial owners) hold the beneficial ownership on trust for the beneficial owners.

Equity – the short answer

Equity provides remedies in situations in which precedent or statutory law might not; Equity arose following from common-law courts limited relief in civil cases to the payment of damages, the recovery of property, or both, refusing to extend relief to meet the needs of new and more complex situations.

As early as the thirteenth century the Kings common law courts were limited in providing restitution. Aggrieved litigants sought more effective justice by petitioning the King with the petitioners being referred to the King’s principal minister, the Lord Chancellor; by the middle of the fourteenth-century petitioners approached the Lord Chancellor directly, leading to the Court of Chancery being recognized as a distinct court that fashioned novel equitable remedies

Privy Council

The Privy Council had to decide whether Joycelyn had a beneficial interest in Hugh’s Queensland Property when it was being held by the executors; finding Jocelyn was not entitled to any beneficial interest in any property in Queensland at the date of her death. However Jocelyn was entitled to a chose in action in respect of her rights under Hugh’s will, capable of being invoked for any purpose connected with the proper administration of his estate.

A Chose in action is an intangible property right which can only be claimed or enforced by (legal) action.

A beneficiary under an estate has no interest in the property to be administered, but only a right to require the estate to be duly administered, and to receive an appropriate proportion of the nett estate.

The estate of a deceased comes to the executor ‘virtute officii . . in full ownership, without distinction between legal and equitable interests’ but they hold the estate ‘for the purpose of carrying out the functions and duties of administration, not for [their] own benefit’.

The question was whether Jocelyn’s share in Hugh’s real and personal estate in Queensland, a share that had devolved on her death to those entitled under her intestacy, was subject to Queensland succession duty.

The Privy Council held that Jocelyn did not have a beneficial interest and therefore no succession duty was payable on her death.

Bob Hawke & Family Provision

Bob Hawke was Australia’s 23rd Prime Minister leading the Australian Labor Party to victory in 1983, 1984, 1987, and 1990, making him the most electorally successful Labor Leader in history. Hawke was born in Bordertown South Australia; attended the University of Western Australia and was a Rhodes Scholar.

In 1956, Mr Hawke joined the Australian Council of Trade Unions (ACTU) as a research officer, working through a number of roles before eventually being elected ACTU President in 1969, where he achieved a high public profile.

In 1980 Mr Hawke was elected to the House of Representatives as the Member for Wills in Victoria; leading the ALP to victory at the 1983 election.

Mr Hawke married his first wife Hazel in 1956 they had four children; Susan (born 1957), Stephen (born 1959), Roslyn (born 1960) and Robert Jr, (born 1963 who died in early infancy).

Mr Hawke was known throughout his first marriage for his heavy drinking and womanising. Notably Mr Hawke had an extra marital relationship with his biographer Blanche d’Alpuget; leaving Hazel for Blanche in the 1990’s leading to an estrangement from some of the members of his family for a time. Reportedly Mr Hawke and his family reconciled by the 2010s.

Mr Hawke died on 16 May 2019, aged 89 of natural causes, at his home in Sydney.

Mr Hawke reportedly left an estate in excess of $15M to his second wife Blanche, with a separate arrangement for the payment of $750,000 to each of his children and stepson on his death.

Reportedly Mr Hawke’s daughter, Roslyn Dillon is preparing to make a family provision claim on the estate; a two stage approach is applied by a Court in considering such applications:

  1. was the provision (if any) made for the applicant ‘inadequate for (his/her) proper maintenance, education and advancement in life’ having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and
  2. the relationship between the deceased and other persons who have legitimate claims on the estate.

Roslyn, as a child of Mr Hawke, is eligible to make a claim on the estate and the court will consider various factors in assessing her claim; if Roslyn can establish that she has not received sufficient provision for her proper education, maintenance and advancement, then the court may make an order for the estate to meet her financial need.