SChallenging the adequacy of a gift in a will has a long history. In Roman times, certain persons could bring a querela inofficiosi testamenti – complaining of an undutiful or irresponsible will. Children could bring a complaint against a parent’s will on the basis that the child was passed over for no good reason, and parents could bring such a complaint against a child’s will. Siblings could make such a complaint, but only if the will appointed a beneficiary who was turpis persona, namely a person whose occupation was disreputable (such as an actor, prostitute or brothel owner).

All of which proves that challenging wills is not new. And that the categories of challengers may not always be seen to be universally sensible.

By legislation which received Royal assent on 18 September 1916, similar rights to challenge wills were introduced in NSW. We celebrate the centenary of that legislation on 7 October 2015 because of the notorious actions of John Norton. Norton, once a member of the NSW Legislative Assembly, died with an estate worth £106,000 which he left entirely to his daughter Joan to the exclusion of his widow and son. Norton was considered an “habitual drunkard of the worst kind”. He had been brutally cruel to his wife. In was in this context that the legislation was made retrospective, to commence before Norton’s death. This allowed Ada Norton and the son to bring a family provision claim against her late husband’s estate. The NSW Supreme Court obliged, in part. Mrs Norton was awarded £1,308. The son received a weekly allowance of £3. Family provision claims in NSW had commenced! One hundred years ago, the law reached the stage that had existed in Roman times. Another example of “Everything old is new again”.

Today, not only widows and children but widowers, domestic partners (including same sex partners), former husband and wives, some dependants, carers, some grandchildren and others can bring a family provision claim.



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