Introduction

A Statement of Testamentary Intention plays a pivotal role in estate planning, particularly when it comes to family provision claims. This legal document outlines a testator’s reasons for distributing their estate in a specific manner, which can significantly influence the outcome of such claims. Understanding its implications is crucial for those involved in estate planning, as it can either support or challenge the provisions of a will.

This article delves into the role of a Statement of Testamentary Intention in family provision proceedings, exploring its admissibility in court and its impact on judicial decisions. We will examine how these statements can affect the outcome of claims, the potential risks of relying on them, and the importance of seeking legal advice to navigate these.

Understanding Family Provision Claims

Legal Framework for Family Provision Claims

The Succession Act 2006 (NSW) provides the legal foundation for family provision claims. Under this Act, eligible individuals can seek orders from the court to adjust the distribution of an estate if they believe the will does not make adequate provision for them.

The court has the discretion to order a different distribution of the estate, which may differ from the deceased’s intentions as stated in their will. This legal mechanism ensures that the financial and emotional needs of eligible persons are considered, even if the deceased chose not to provide for them in their will.

Key aspects of the legal basis include:

Key Aspect	Explanation
Eligibility	Only certain individuals, such as spouses, children, and dependents, are eligible to make a claim.
Court Discretion	The court evaluates each case based on its unique circumstances, considering factors like the size of the estate, the financial needs of the applicant, and the relationship between the applicant and the deceased.
Adequate Provision	The court’s primary concern is whether the provision made in the will is adequate for the applicant’s proper maintenance, education, or advancement in life.

Eligible Applicants & Their Needs

Eligible applicants for family provision claims are typically those who were closely related to the deceased or dependent on them. The Succession Act 2006 (NSW) outlines specific categories of eligible persons, which include:

• Spouses and de facto partners
• Children and stepchildren
• Former spouses
• Dependent grandchildren
• Persons in a close personal relationship with the deceased
• Members of the same household who were dependent on the deceased

When assessing a claim, the court considers various factors to determine the adequacy of the provision made for the applicant. These factors include:

Factor Considered	Details
Financial circumstances	The current and future financial needs of the applicant.
Relationship with the deceased	The nature and quality of the relationship, including any estrangement.
Contributions to the deceased	Whether the applicant provided care, support, or financial assistance to the deceased.
Size and complexity of the estate	The overall value of the estate and the deceased’s ability to provide for multiple beneficiaries.

The court’s goal is to balance the competing interests of all parties involved and ensure that the distribution of the estate aligns with what is fair and just, considering both the deceased’s intentions and the needs of the eligible.

Role of Testamentary Statements in Proceedings

Admissibility of Written Statements in Court

A Statement of Testamentary Intention is a written document that outlines the deceased’s reasons for the provisions made in their will. Under section 100(2) of the Succession Act 2006 (NSW), such statements are admissible in court to explain or justify the will’s provisions.

These statements can be crucial in family provision claims as they provide insight into the deceased’s mindset and intentions. However, for a statement to hold evidentiary weight, it must meet specific criteria:

• Be contemporaneous with the will
• Be properly documented, often in the form of:
  • An affidavit
  • A statutory declaration

Section 100 Statements & Their Influence on Claims

A Section 100 statement plays a significant role in family provision proceedings by allowing the court to consider the deceased’s perspective. This perspective can influence whether the provisions made in the will are deemed adequate.

Impact on Family Provision Outcomes

This section explores how a deceased’s written intentions can affect decisions regarding family provision claims, including the court’s assessment of what constitutes adequate provision for an applicant.

Determining Adequate Provision for the Applicant

When assessing whether the provision made for an eligible person is adequate, the Court considers several factors. A statement of testamentary intention, admissible under Section 100(2) of the Succession Act 2006 (NSW), provides valuable context to help the Court understand the deceased’s reasoning. However, while this statement is relevant, it is not the determinative factor. The court will not “unquestionably accept” the deceased’s words as true, recognising that, like any witness statement, it can contain inaccuracies due to memory failure, mistake, or deliberate untruth.

Key factors the Court evaluates include:

Factor Evaluated by the Court	Description
Relationship dynamics	The nature and quality of the relationship between the applicant and the deceased, including any estrangement or reconciliation efforts.
Financial needs	The applicant’s current and future financial requirements, such as for housing, medical expenses, and education.
Estate size	The overall value of the estate and whether it can provide for all beneficiaries without causing undue hardship.
Contributions to the deceased	Any financial or emotional support the applicant provided to the deceased during their lifetime.

Case Law Examples

Dodd v Dodd (2022)

In Dodd v Dodd [2022] NSWSC 199(“Dodd v Dodd (2022)”), the deceased made two Section 100 statements detailing a 22-year estrangement from his son, Peter, citing Peter’s aggressive behaviour as the reason for his exclusion from the will.

Despite these statements, the Court awarded Peter $520,000 from an approximate $800,000 estate. The Court found that the deceased’s reasoning did not fully justify the exclusion because Peter had made genuine attempts at reconciliation which the deceased rejected, and the deceased himself bore significant responsibility for the breakdown of the relationship. The Court ultimately gave the statements “little weight” because they came from a “narrow perspective” and failed to acknowledge the deceased’s own role in the conflict.

Plummer v Montgomery (2023)

In Plummer & Anor v Montgomery [2023] NSWSC 175 (“Plummer v Montgomery (2023)”) the deceased left a written statement explaining her decision to exclude her stepchildren, citing their “intolerable behaviour” and lack of a close relationship.

In this instance, the Court remembered the deceased’s testamentary wishes as expressed in both her will and her written statement. It ultimately declined to make an order for provision for the stepchildren, finding that there was no close personal relationship and that the deceased had never provided them with financial support. The idea of a statement being disregarded due to manipulation comes from a different case, where a judge found a statement was not definitive because it was the result of “manipulation and misinformation” by another beneficiary and the deceased had impaired cognitive capacity. This highlights that for a statement to be given significant weight, it must be the product of an independent and considered judgment.

Challenges & Risks of Testamentary Statements

Potential Inaccuracies & Misinformation

Relying on a Statement of Testamentary Intention to justify or contest a family provision claim carries inherent risks, particularly if the statement contains inaccuracies or outdated information. A statement that no longer reflects the true circumstances at the time of the deceased’s passing can undermine the will-maker’s intentions and potentially strengthen the applicant’s case.

For instance, if the statement details an estrangement that has since been reconciled, it may lose its evidentiary weight and be easily rebutted by the applicant.

Key risks when relying on testamentary statements include:

Risk	Description
Manipulation or lack of independent judgment	Statements found to be the result of manipulation by another beneficiary or made by a testator with impaired cognitive capacity will not be considered definitive.
Unsubstantiated claims	Statements containing unfounded allegations or slurs can backfire, potentially bolstering the applicant’s case against the estate and harming the executor’s position.
Outdated information	A statement made years before the will may no longer accurately reflect the relationship or circumstances at the time of death, diminishing its relevance.

Importance of Timely & Contemporaneous Documentation

To maximise the effectiveness of a Statement of Testamentary Intention, it is crucial that the document is prepared contemporaneously with the will and reviewed regularly to ensure accuracy.

Best practices for creating effective testamentary statements include:

Best Practice	Explanation
Preparation in consultation with a lawyer	Ensuring the statement is properly documented and avoids unsubstantiated claims or emotional language that could undermine its credibility.
Storing the statement separately	Reasons for excluding a beneficiary should be in a separate document, not the will itself, allowing the executor discretion over its use.
Regular reviews	The statement should be updated to reflect any changes in circumstances, such as reconciliations or shifts in the testator’s relationships or financial situation.

By following these guidelines, a Statement of Testamentary Intention can serve as a powerful tool in family provision proceedings, providing clarity and support for the will-maker’s decisions. However, without proper care and attention, it risks becoming a liability rather than an asset.

If you are considering drafting or relying on such a statement, it is essential to seek legal advice from experienced wills and estates lawyers to ensure it is prepared and maintained correctly.

Conclusion

A Statement of Testamentary Intention plays a crucial role in family provision claims, offering insight into the deceased’s reasoning behind their estate distribution. While these statements are admissible in court under Section 100 of the Succession Act 2006 (NSW), they are not determinative. The court considers these statements alongside other factors, such as the applicant’s financial needs, relationship dynamics, and the estate’s size, to determine if the provision is adequate. Cases like Dodd v Dodd (2022) and Plummer v Montgomery (2023) illustrate how these statements can influence outcomes, though they are not the sole deciding factor.

If you are involved in a family provision claim or need guidance on drafting a Statement of Testamentary Intention, contact PBL Law Group’s experienced family provision claim lawyers. Our experts provide trusted advice and solutions tailored to your needs, ensuring your rights and interests are protected.

Frequently Asked Questions