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  • Evidence of a statement made by a deceased person as to their testamentary decisions is admissible in family provision proceedings.
  • Testamentary statements can be both helpful and harmful.
  • Beware of the efficacy of such statements particularly where the contents are uncorroborated.

The inherent challenge of family provision claims is that the person whose estate is subject to the claim is unable to tell their side of the story. The Court recognises the difficulties this can present and is empowered to admit evidence of a statement made by a deceased person in the proceedings.

However, the use of such statements can be a double-edged sword. Care must be exercised to ensure that a benefit does not become a burden. This article considers the pros and pitfalls of testamentary statements in the context of family provision claims and provides practical tips for the arsenal.

Admissibility of testamentary statements

The Court may have regard to a wide range of factors when determining whether to make a family provision order and the nature of any such order (Succession Act 2006, s 60(1)) (‘Succession Act’).

A matter that may be considered by the Court is any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person (Succession Act, s 60(2)(j)). It has been the long-favoured view of the Court that evidence of this nature is admissible to establish the reasons why the testator has disposed of their estate in a certain way (Kelly v Deluchi [2012] NSWSC 841 at [222]-[224] and Hughes v National Trustees, Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134 at [18]).

A statement is defined to include any representation or fact, whether or not in writing (Succession Act, s 100(1)). Where appropriate, it is common practice for practitioners to prepare a written statement or statutory declaration made by the deceased at the time of preparing a will. While this is a conventional form of evidence admitted in family provision proceedings, the definition of a statement extends to the following mediums:

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