The Family Provision Act 1982 (NSW), despite its repeal over 15 years ago, continues to apply to estates where the deceased died before 1 March 2009. In these cases, family provision claims are determined under the former Act, not Chapter 3 of the Succession Act 2006 (NSW). Practitioners and executors therefore continue to encounter the 1982 Act in current litigation involving older estates.

Family Provision Claims

The repeal of the Family Provision Act 1982 (NSW) did not alter the core principles underlying family provision claims. The central question remains whether the deceased failed to make adequate provision for the proper maintenance, education, or advancement in life of an eligible person. Courts continue to apply many authorities and principles developed under the former legislation.

The main differences are found in the statutory framework. The Succession Act 2006 (NSW) broadened the categories of eligible persons, shortened the limitation period from 18 to 12 months after death, and consolidated family provision law within the wider succession regime. However, the concepts of eligibility, adequate provision, competing claims, and judicial discretion remain substantially the same. A significant distinction in matters involving unadministered estates or claims brought many years after death. In these cases, the Court may need to consider applications for extensions of time, limited grants of administration, and the operation of notional estate provisions.

Preliminary Steps

Identifying the applicable legislative regime is the essential first step in a family provision claim. The date of death determines whether the Family Provision Act 1982 or the Succession Act 2006 applies, which can materially affect both procedure and outcome.

Practitioners managing unadministered estates or late family provision claims undertake several preliminary steps:

  • Identify the date of death to determine the applicable legislative regime and any transitional provisions.
  • Collect all relevant evidence, including proof of eligibility, details and reasons for any delay, and the current status of estate administration.
  • If no grant has been made, consider seeking a limited grant of administration for the purpose of proceedings.
  • Prepare evidence to support any application for an extension of time, with clear explanation and justification for the delay.
  • Where a notional estate order may be required, gather information about property transactions and potential assets at an early stage.

These steps enable the Court to assess the circumstances and support a complete application.

Background

Pronesti v Napoli [2024] NSWSC 1049 arose from an application by Peter Pronesti (Plaintiff/Applicant), who sought a family provision order from the estate of the late Salvatore Napoli(the deceased). The applicant’s claim depended entirely on establishing that the deceased was the applicant’s biological father. To determine that issue, the applicant sought orders requiring himself and Salvatore’s two acknowledged sons, Antonio and Giuseppe Napoli (the first and second respondents), to undergo Y-chromosome DNA testing under Division 6 of the Status of Children Act 1996 (NSW). 

The applicant commenced proceedings outside the statutory limitation period. Stating that he first learned in September 2023, when his elderly mother allegedly disclosed the information, that the deceased was his biological father rather than the man who had raised him. The applicant accepted that if DNA testing excluded the deceased as his father, his claim would fail and the Court would discontinue the proceedings.

The deceased’s son, Antonio, has been appointed as his mother, Angela’s, tutor for these proceedings due to the infirmities of her advanced age (99 years old), as the defendant. The applicant’s paternity claim is disputed by the defendant and the first and second respondents, who oppose the application. Neither respondent provided evidence of any personal objection to DNA testing, and there was no evidence that they would refuse to comply with a court order.

Applicant’s Evidence

Kunc J made a preliminary observation before setting out the evidence: No party should assume that evidence admitted on an interlocutory basis will be admissible at a final hearing in the form in which his Honour received it. Some of that evidence related to matters that are obviously sensitive and difficult for the families concerned. Quite properly, no party sought to cross-examine the other parties’ witnesses.

The importance of the evidence provided by the applicant was to establish that there is a dispute in Pronesti v Napoli [2024] NSWSC 1049 about the applicant’s parentage. Kunc J made no findings as to the truth or otherwise of the respective allegations that demonstrate the existence of that dispute.

The applicant submitted the account that Giuseppe Napoli, his mother, disclosed the deceased’s paternity shortly before losing capacity, DNA test results excluding the man the applicant believed to be his full brother as sharing the same paternal lineage, and the applicant’s mother expressed near certainty that the deceased was his biological father. The estate relied on historical documents signed by the applicant’s mother identifying the applicant as the child of her husband, Giuseppe Pronesti.

Parentage Disputes

In parentage disputes, the Court considers direct testimony, contemporaneous documentary records, and scientific evidence such as DNA profiling. Recent and reliable DNA test results generally carry the greatest evidentiary weight, followed by contemporaneous documents such as birth certificates or statutory declarations. First-hand testimony remains relevant. Hearsay evidence, including disclosures from ml an incapacitated parent, may be admitted but is usually given less weight, particularly where more reliable evidence is available.

Incomplete, conflicting, or late evidence can weaken an application. Prioritise obtaining scientifically reliable and independent evidence, then contemporaneous records, and corroborate direct testimony with supporting material to address potential challenges to credibility or reliability.

Practitioners issues

Where key evidence or witnesses are unavailable, as is common in historical claims, consider circumstantial or indirect evidence to address evidentiary gaps.

Indirect evidence may include personal correspondence referring to

  • family relationships,
  • financial records showing support payments from the deceased to the applicant,
  • photographs,
  • jointly held property records,
  • school or medical records listing the deceased as a parent or guardian, or
  • statements from third parties who observed the relationship during the deceased’s lifetime.

Patterns of conduct, such as

  • frequent contact or cohabitation, and
  • admissions or acknowledgments of a relationship in public documents may also be relevant.

Documentary Evidence

Compile and organise documents

  • chronologically,
  • identify corroborative links, and
  • provide clear written submissions explaining how each item supports the case.

In complex matters, directions may be sought from the Court on alternative methods of proof or clarification of evidentiary requirements. Explaining missing evidence and detailing efforts to obtain unavailable material can help the Court understand the applicant’s limitations and may help overcome obstacles to establishing necessary facts.

Kunc J emphasised that, as the application was interlocutory, no findings as to the truth of the competing allegations were made and only evidence for the limited purpose of determining whether there was a genuine dispute about parentage was admitted.

The applicant submitted that there was a sufficient factual basis to put his parentage in issue and that the proposed DNA testing would serve a practical forensic purpose. While the testing could not conclusively establish the deceased as the applicant’s father, a negative result would exclude the deceased as the biological father and bring the proceedings to an end, avoiding further litigation.

The estate argued that the applicant had not demonstrated a sufficiently arguable case to justify the orders, particularly given his mother’s apparent dementia when she allegedly disclosed his true parentage. The estate also submitted that authorising such testing could encourage speculative claims against estates. Kunc J rejected those submissions as the statutory requirement that parentage be “in issue” was clearly satisfied.

The evidence established a genuine dispute concerning the applicant’s biological parentage, and the proposed testing served a legitimate forensic purpose because a negative result would definitively exclude the deceased as the applicant’s father. Kunc J considered that the possibility of an early and conclusive resolution strongly favoured making the orders.

Rejecting the suggestion that permitting the testing would invite speculative claims, observing that the proposed Y-chromosome analysis could identify only a shared paternal lineage rather than establish specific paternity. 

The evidence satisfied the jurisdictional prerequisite for ordering a parentage test under s 26 of the Status of Children Act 1996 (NSW) is that the proceedings are ‘where the parentage of a child is in issue’.

In the absence of any objection from the respondents to undergo the test, and even allowing for the possibility that they may refuse to comply with the order, Bennet J finds there is real utility in ordering the respondents to undertake the test, as a negative result will bring these proceedings to an early end, saving everyone time, trouble and costs.

Nicholls v Hall & Ors (NSWCA), the court determined that bare paternity alone is legally sufficient to warrant a financial claim or moral entitlement under family provision laws

Accordingly, following Kohari v NSW Trustee & Guardian [2016] NSWSC 1372, the court ordered DNA testing to confirm biological paternity, necessary for claiming from a deceased’s estate. It also ordered that the estate pay the applicant’s costs of the application. The Court held that the estate’s obligation to protect the estate included avoiding unnecessary litigation and assisting the Court to achieve the overriding purpose under the Uniform Civil Procedure Rules 2005 (NSW). Once it became apparent that DNA testing could quickly determine whether Peter had any viable claim, the estate should have consented to the testing rather than continuing to oppose the application. 

Costs

Costs are generally awarded to the successful party, particularly where opposition was not reasonably justified. Courts assess whether resistance to an interlocutory step caused unnecessary delay or expense. Practitioners should advise clients that unsuccessful parties often bear the costs of such applications, increasing financial risk if reasonable procedural steps are opposed.

Early and pragmatic decisions can mitigate the risk of adverse costs orders. However, costs do not always follow the event. Exceptions may arise where the case raises novel legal issues, involves questions of public interest, or where parties have acted reasonably despite being unsuccessful. Departures from the usual rule may also occur where a party has engaged in misconduct, failed to comply with procedural directions, or unnecessarily prolonged proceedings.

Costs may be apportioned where there is partial success or where both parties have contributed to unnecessary expense. Recent cases illustrate these principles. In Estate of Smith [2023] NSWSC 542, the Court did not award costs against the unsuccessful applicant due to the novelty of the legal issue. In Re Williams; Estate of Williams [2022] NSWSC 1057, costs were ordered on a different basis because both parties contributed equally to unnecessary expense. Consider and discuss these scenarios with clients to provide accurate advice on costs risks.

Pronesti v Napoli (No 2) [2026] NSWSC 856

Because the deceased died on 20 November 2003, the applicant’s family provision claim is governed by the Family Provision Act 1982 (NSW), not Chapter 3 of the Succession Act 2006 (NSW). The transitional provisions preserve the operation of the 1982 Act for estates where death occurred before 1 March 2009.

The Succession Act 2006 may apply where proceedings commenced before 1 March 2009 but remained undetermined, or where an appeal was lodged after that date. Other exceptions may arise if a fresh grant of representation is made, or where substituted administrators or executors are involved. Review the facts and transitional clauses in each case to confirm the applicable legislative regime.

Under the FPA, the applicant had to establish that they were an “eligible person”, namely a child of the deceased.

Where eligibility is established, the Court is required to determine whether the deceased had failed to make adequate provision for the applicant’s proper maintenance, education and advancement in life.

Only if that threshold was satisfied would the Court consider what provision, if any, ought to be made. 

Consideration

In Pronesti v Napoli (No 2) [2026] NSWSC 856 Bennett J adopted the well-established two-stage approach described in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 and Phillip Seeto v Kim Yum Bong Seeto [2013] NSWSC 1232

Stage 1: Jurisdiction and Need

The court considers factors such as:

  • The applicant’s financial circumstances,
  • The size of the estate,
  • The nature of the relationship with the deceased,
  • Any contributions made by the applicant to the deceased’s welfare or wealth.

Stage 2: What’s Adequate and Proper?

The judgment also reaffirmed the principles in Re Fulop, emphasising that the Court’s role is not to rewrite a Will because it appears unfair, but only to intervene where the deceased failed to discharge the moral duty owed to an eligible person. 

Re Fulop (deceased) (1987) 8 NSWLR 679 remains one of the leading authorities on family provision law in New South Wales. McLelland J clarified the principles governing when the Court should intervene to alter a deceased person’s testamentary arrangements and identified the factors relevant to determining whether further provision ought to be made.

A central feature of Re Fulop is the distinction between two broad categories of eligible applicants.

Spouses and children are ordinarily regarded as the deceased’s natural objects of testamentary recognition and do not need to establish any additional basis for bringing a claim.

By contrast, applicants such as former spouses, dependent grandchildren and members of the deceased’s household must demonstrate “factors warranting” the making of their application—that is, circumstances giving rise to a moral claim on the deceased’s estate.

Re Fulop also reinforces that the Court’s role is limited to determining whether the deceased failed to discharge a moral duty to make adequate provision for an eligible person, having regard to all the circumstances.

In deciding whether to make an order for further provision, the Court may consider a wide range of factors, including:

  • the nature, quality and duration of the relationship between the applicant and the deceased;
  • the applicant’s financial circumstances, present and future needs;
  • any financial, domestic or caregiving contributions made by the applicant to the deceased or the deceased’s property;
  • the size and nature of the estate;
  • the competing claims of other beneficiaries and eligible persons; and
  • the applicant’s character and conduct, together with any other matter the Court considers relevant.

Although the statutory framework has since been incorporated into the Succession Act 2006 (NSW), the principles articulated in Re Fulop continue to underpin modern family provision litigation and remain frequently cited by the courts.

In determining the need for further provision, the Court may consider all relevant circumstances, including the applicant’s:

  • relationship with the deceased,
  • financial needs,
  • conduct,
  • contributions to the deceased’s welfare or property,
  • competing claims on and the size of the estate or both.

Slattery J further highlighted an applicant’s obligation to provide full and frank disclosure of their financial circumstances. Incomplete, inaccurate or misleading evidence may justify adverse inferences and may prevent the Court from concluding that inadequate provision has been established. The Court relied on authorities including Blendell v Blendell [2020] NSWCA 154, Nicholls v Hall [2007] NSWCA 365 and Collings v Vakas [2006] NSWSC 393 in explaining the consequences of inadequate financial disclosure.

A further procedural issue arose because no grant of probate or administration had been obtained. Although s 7 of the FPA requires a grant before the Court can ultimately make a family provision order. Bennet J accepted that, consistent with the former s 41A of the Probate and Administration Act 1898(NSW) – which continues to apply through the transitional provisions – proceedings may commence before a grant is obtained. The applicant was granted leave to amend his summons to seek a limited grant of administration for the sole purpose of determining the family provision proceedings.

Delaying the application for a limited grant may result in procedural setbacks, including adjournments or challenges to a claimant’s standing, and may ultimately delay resolution of the proceedings. Prompt action to obtain the appropriate grant can help avoid these risks and ensure that the proceedings progress efficiently.

The Court identified five principal issues for determination, whether: 

  • The applicant was the deceased’s child and therefore an eligible person; 
  • time should be extended for the out-of-time application; 
  • adequate provision had been made; 
  • a family provision order should be made; and
  • property should be designated as notional estate.

Ultimately, the Court concluded that the applicant was

  • the deceased’s child and therefore an eligible person,
  • that sufficient cause existed to extend time,

Additionally

  • The deceased had failed to make adequate provision for Peter’s proper maintenance and advancement, and
  • that provision should be made from the deceased’s notional estate.

Decision

Bennet J ordered that the applicant receive $975,000 from the deceased’s notional estate.

granted the applicant limited letters of administration to pursue the family provision proceedings,

extended the limitation period, and

directed the parties to prepare orders addressing the designation of notional estate property and costs. 

Tracing notional estate assets

Practitioners often face practical challenges tracing notional estate assets, especially where significant time has elapsed post-mortem. Incomplete records and unavailable witnesses can complicate the process. Checklists or templates are useful for streamlining asset tracing and ensuring comprehensive information gathering. A notional estate tracing checklist may include reviewing historical title and Land Registry records, tracking bank and investment transactions, listing inter vivos transfers, examining gift or loan documents, and collecting evidence from third parties regarding asset movement. Using such tools helps ensure all relevant avenues are explored and documentation is organised for the application.

Identification of the Notional Estate

Take concrete steps to identify and trace notional estate assets, including:

  • Reviewing historical land title and property records to trace real estate transfers made by the deceased;
  • Examining bank statements, share registers, and other financial account records for evidence of asset dispositions or inter vivos gifts;
  • Obtaining affidavits from surviving family members, former advisers, or associates who may have knowledge of property dealings or relevant transactions;
  • Investigating probate registries and searching for previous grants or administration documents that may disclose property or asset movement;
  • Consulting accountants, solicitors, or financial institutions that acted for the deceased and may hold relevant records.

Identifying assets formerly held by the deceased, proving relevant transfers, and meeting evidentiary requirements for notional estate designation often require detailed investigation. Administering notional estate property after long delays may involve changes in ownership, third-party rights, and difficulties in recovering property or funds. Anticipate these complexities and address them when advising on delayed family provision claims.

Approach

Adopt a stepwise and methodical approach to tracing notional estate assets to address these challenges. The following sequence may assist in organising the process:

  • Step 1: Start by collecting and reviewing available bank statements, financial account records, and transaction histories to identify any transfers or unusual activity.
  • Step 2: Examine land title and property records to trace ownership and any real estate transfers made by the deceased, including sales, gifts or joint tenancies.
  • Step 3: Issue subpoenas to banks, conveyancers, financial institutions, or other relevant third parties for further documentation as required, particularly if records are incomplete or missing.
  • Step 4: Search ASIC databases and registers of company interests to identify shares, business assets, or interests that may have been disposed of or transferred before death.
  • Step 5: Review archived materials such as historical tax returns, loan documents or correspondence with accountants or advisers to uncover evidence of asset movements or undisclosed transactions.
  • Step 6: Engage forensic accountants when asset trails are complex or suspected of involving hidden or dissipated property, so they can reconstruct asset movements using specialist analysis.
  • Step 7: If further information is required, seek court directions for the examination of parties or the discovery of documents to obtain evidence from parties with knowledge of estate-related transactions.

Pronesti v Napoli (No 2) [2026] NSWSC 856 confirms that the date of death determines the applicable legislative regime, with estates of persons who died before 1 March 2009 governed by the Family Provision Act 1982 (NSW). It also highlights the ongoing relevance of notional estate provisions, the Court’s approach to extending time in exceptional circumstances, and the continued application of principles of eligibility, moral duty, and adequate provision in family provision claims in New South Wales.

Following a logical sequence enables practitioners to address gaps and assemble a comprehensive picture of asset disposition. These methods help reconstruct incomplete asset histories and meet evidentiary requirements for notional estate claims.

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