D’Apice v Passas (No 2) [2026] NSWSC 570: The importance of testamentary intention in family provision claims

The deceased, Mr Puopolo, passed away at the age of 93 and was survived by his two daughters, Maria and Josephine.

Under a Will made in 2012, the majority of his estate was left to Josephine. Maria received no significant benefit under that Will.

Maria sought to overturn the 2012 Will and revive an earlier 2003 Will, under which the remaining estate would have been shared equally between the sisters. She argued that her father did not properly understand or approve the contents of the later Will and that several circumstances surrounding its preparation raised concerns about its validity.

As an alternative claim, Maria also sought further provision from the estate under the family provision provisions of the Succession Act 2006 (NSW).

One of the central arguments focused on a statement in the 2012 Will expressing the deceased’s desire to “treat my two daughters equally.”

Maria argued that the statement was inconsistent with the actual distribution of the estate because Josephine received almost everything while she received little or nothing.

The Court disagreed. When the Will was read as a whole, it became clear that the deceased was considering the substantial financial assistance he had already provided to Maria during his lifetime. The Will referred to significant assets and benefits that had previously been transferred to her and her family, including interests in property-holding entities and valuable real estate.

I reject Maria's submission that there is some contradiction between cl 5 and cl 4 in the manner she submits. Maria's submissions have as their focal point the sentence “I wish to treat my two daughters equally” in cl 5. Her submissions wholly ignore the balance of cl 5. The very first sentence of cl 5 has Alessio expressly acknowledging, in plain English, that he is not providing for Maria in the 2012 Will because he had done so at other points in his life. Following the sentence on which Maria focuses, Alessio then states what he has provided for Maria during up to 2012.

The Court accepted that the deceased considered these earlier transfers when assessing fairness between his daughters. In his view, leaving his remaining estate to Josephine achieved overall equality when all lifetime gifts and benefits were taken into account.

Maria relied on several factors which she claimed cast doubt on the validity of the Will. However, the Court found that none of them undermined the presumption that the deceased knew and approved its contents.

Advanced age

Although the deceased was in his eighties when the Will was prepared, there was no evidence that he lacked mental capacity or was vulnerable to influence. The evidence showed that he remained active, independent, and capable of managing his personal affairs.

[204] […] The evidence firmly establishes that even when he was 82, Alessio was not a physically or mentally frail man around the time when the 2012 Will would have been prepared and executed. As I have already recounted, the evidence shows Alessio was driving himself around, including to Hurstville, seeing friends, and otherwise leaving the house to do things. Nothing in the evidence could lead the Court to conclude that at the time of the 2012 Will, Alessio would have had significant mental or physical difficulty impacting his ability to give instructions for, understand or execute a new will.

A change of solicitor

The fact that the deceased engaged a different solicitor to prepare the 2012 Will did not, of itself, create suspicion. The Court noted there was no evidence that the new solicitor acted improperly or that the deceased was pressured into changing his testamentary arrangements.

Lack of English proficiency

The deceased’s first language was Italian, but the Will was drafted in English. The Court observed that he had routinely signed and dealt with important legal and commercial documents in English over many years. Accordingly, there was no basis to conclude that language difficulties prevented him from understanding the Will.

[213] The evidence firmly establishes that over a long period of time Mr McBride was Alessio's solicitor, a fact Maria also relies on. Mr McBride also either prepared legal documents for Alessio in English, or would have advised on or sought instructions in relation to documents in English (the property transfer forms), and no issues have been raised as to Alessio's understanding. Given there is no evidence Mr McBride needed to either engage a translator for Alessio nor spoke a language other than English to Alessio, I am prepared to draw the inference that Alessio primarily dealt with Mr McBride in English. That being the case, it is then not clear why in 2012, suddenly, Alessio would be unable to engage with a new solicitor in English.

Use of an English version of a name

The deceased referred to his daughter as “Josephine” rather than her Italian name, “Giuseppina”, or her common nickname, “Pina”. The Court regarded this as entirely unsurprising, particularly given that she had formally adopted the English version of her name years earlier.

[223] […] I do not accept Maria's contention the use of Josephine in a testamentary context was suspicious. Josephine had legally changed her name and had that name change formally registered. The name in the 2012 Will is Josephine's legal name.

A subsequent statutory declaration

The Court also considered a statutory declaration signed by the deceased after the Will was made. In that document, he explained why he intended Josephine to receive the balance of his estate.

[271] This is a case where the testator, Alessio, has clearly expressed his testamentary intentions. He has done so in two different documents. In both the 2012 Will and 2014 Statutory Declaration, I consider Alessio has shown he has given express and due consideration as to who should benefit from his estate, and I consider the evidence supports a finding that he was clearly capable of doing so. That reasoning, namely that he should give his estate to Josephine given that, in his estimation, Maria had already been provided for and has sufficient wealth, and Josephine needed to be recognised for her contributions to Alessio's property portfolio, was consistent with the sentiment he expressed to others. I consider that considerable weight should be given to Alessio's testamentary intentions as a result (Slack v Rogan [2013] NSWSC 522 at [127]), especially in this case where those testamentary intentions were affirmed many times subsequently.

Having upheld the Will, the Court turned to Maria’s alternative claim for family provision.

A critical factor in family provision cases is the claimant’s financial circumstances and whether adequate provision has been made for their proper maintenance, education, or advancement in life.

The evidence demonstrated that Maria and her husband possessed substantial wealth, including multiple properties, investments, significant savings, superannuation entitlements, and interests in trusts controlling valuable real estate.

[264] On any view, Maria and Nino are wealthy. Josephine also put on her own valuations for some of Maria and Nino's properties, but I do not think reference needs to be made to those valuations given even Maria and Nino's own evidence discloses considerable wealth.

Given her strong financial position, the Court found that she had no demonstrated need for further provision.

The Court also placed weight on Josephine’s longstanding contributions to the care and welfare of both parents, particularly during periods of illness and declining health. Those contributions strengthened her claim to benefit from the estate. Accordingly, the family provision application was dismissed.

[272] Maria's moral claim on Alessio's is largely founded on her assertions that Alessio expressed an intention to treat his daughters equally, rather than on the circumstance of financial need, for example. I accept Alessio did want to treat his daughters equally, but that equality was not simply splitting 79 Rxxx Street, his remaining asset, equally between his daughters. Rather, I consider, based on the statements contained in the 2012 Will and the 2014 Statutory Declaration, as well as his expressed desire to “fix” or “square” things up between Josephine and Maria, Alessio was focused on what might be described as a “global” or “overall” equality between Josephine and Maria in terms of the provision he gave to them both during his entire life.