The recent decision of Hallen J in the New South Wales Supreme
Court has provided a fresh reminder of the wide judicial discretion
available in altering a testator's will to accommodate family
provision claims under Part 2 of the Succession Act 2006
The case concerned the will of Mr Clive Shakespeare, a founding
member of the pop-rock group "Sherbert," who passed away
leaving his wife, Elizabeth, his former wife, Slava, and his two
daughters from the first marriage, Coco and Tori who brought a
family provision claim for further provision out of Mr
In his will, Mr Shakespeare allocated most of his estate to
Elizabeth – leaving her all music royalties and household
chattels and a life estate in a property at Newtown. His daughters
were allocated the remainder of the Newtown Property upon the
passing of Elizabeth's life estate. At the time of making the
will, Mr Shakespeare also made a Statutory Declaration justifying
the allocations made in the will.
Relevantly, the Statutory Declaration noted that Mr Shakespeare
had tried during his life to look after Coco and Tori who both
suffer from severe drug addiction problems, and Tori also from
schizophrenia, and went on to say:
"it is clear to me that they are unable to manage
their own financial affairs. For these reasons, together with my
obligations to my wife Elizabeth Anne Flynn , I believe that the
provision for them in my Will is adequate, reasonable and
Despite the express terms of the Will and the accompanying
justification, Hallen J found in favour of the claimants and made
the provision orders: ruling that Coco should receive an amount
equating to 20%, her daughter Ruby 10%, and Tory 18% of the net
proceeds of the Newtown property, and the balance to Elizabeth.
Hallen J noted that when it comes to what is "adequate
provision for proper maintenance and advancement" under
Section 59(1) of the Succession Act, a testator will almost
invariably be in a much better position than a Court deciding the
question "months or years after the deceased's death when
the person best able to give evidence on that question is no longer
alive" [at 135]. Yet, in spite of this, Courts have a
statutory duty to interfere with the will if the provision made is
less than adequate for proper maintenance and advancement of a
claimant. Thus, at paragraph 135, Hallan J summarised that the
balance is to be struck by a Court giving weight to the
testator's wishes, but nonetheless contrasting those wishes
(and circumstances) at the time of the will) with the present
circumstances before the Court and the prevailing community
standards of what is right and appropriate, all of which may differ
from the wishes of the testator.
The decision highlights that even the most contemporaneous and
direct justification by a testator of his or her will cannot be
relied on to withstand alteration from a family provision claim.
The power of the Court is far-reaching and, in the matrix of
complex relationships and fluctuating community standards, wills
may be increasingly vulnerable to this legal minefield of competing
principles and considerations. It may therefore be more advisable
to attempt to make adequate and proper provision rather than
justifying a will that may not be making such provision. This case
highlights the importance when preparing a will, of ascertaining
the full list of potential family claimants (including former
partners or spouses and past and present dependents). Proper legal
advice must be sought in ensuring that adequate and proper
provision is made and the risk of a will being drastically
interfered with reduced.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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There are several requirements that must be completed by an executor before the distribution of assets to beneficiaries.
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