Family provision claims often involve difficult questions about financial needs and whether a will reflects the true intentions of the person who made it. The recent Supreme Court of New South Wales decision in Girotto v Girotto [2025] NSWSC 616 underscores the weight the Court places on a testator’s clear and rational intentions when determining family provision claims, particularly when supported by contemporaneous documentation.
Case Summary
Bertilla Girotto, aged 90, passed away on 18 November 2022, leaving behind a substantial estate valued at approximately $3.6 million including notional estate. Her will made 11 days earlier on 7 November 2022 bequeathed the majority of her estate to her son, Emanuel, and appointed him as the sole executor. Her other son, Maurisio, received a specific legacy of $300,000.
Maurisio, seeking additional provision, filed a family provision claim under section 59 of the Succession Act 2006 (NSW). He contended that the legacy was inadequate for his proper maintenance, education, or advancement in life.
The Court found that Bertilla had made adequate provision for Maurisio. It noted that while she could have left more, she chose not to, providing extensive notes explaining her decision. The Court emphasised that her testamentary intentions were clear and should be respected. Even if the provision had been inadequate, the Court determined it would not have exercised its discretion to order further provision, given the clarity of Bertilla’s intentions and the nature of the family dynamics.
Key Takeaways for Estate Planning and Family Provision Claims
- Clarity of Testamentary Intentions is Crucial
Courts give significant weight to a testator’s clear and rational intentions, especially when documented contemporaneously. In this case, Bertilla’s extensive notes detailing her decisions were pivotal in upholding her will.
- Adequate Provision Does Not Necessarily Mean Equal Distribution
The Court considers whether the provision is adequate for the applicant’s proper maintenance, education, or advancement in life, not whether it is equal to what others receive. Maurisio’s $300,000 legacy was deemed adequate despite the disparity with Dante’s share.
- Moral Claims and Family Dynamics Matter
A testator’s perception of family relationships and moral claims can influence decisions. Bertilla’s decision reflected her assessment of their relationships, which the Court found reasonable.
- Family Provision Claims Are Not Guaranteed
Even if an applicant is an eligible person, the Court has discretion to deny a claim if it finds the provision made was adequate and the testator’s intentions should be respected. Maurisio’s claim was dismissed based on these grounds.
This case highlights the importance of clear and documented testamentary intentions in estate planning. It serves as a reminder that while family provision claims are available, they are not automatic and depend on the adequacy of the provision and the testator’s intentions.
Tonkin Drysdale Partners assists clients with both preparing secure wills and responding to estate claims. To discuss your situation, you can book a free 15-minute case call with our Estate Litigation team.
