Written evidence of the deceased's testamentary intention is admissible in Family Provision proceedings. However, as Dodd v Dodd illustrates, while a written statement of the deceased's intention is relevant, it is not the determinative factor.

The deceased's testamentary intention, specifically, their reasoning for leaving any person out of their will or providing for any persons above others in their will, are clearly relevant to a family provision claim.

Accordingly, section 100(2) of the Succession Act provides that evidence of a statement made by the deceased which explains or justifies the provisions of a will is admissible evidence.


The deceased left his only son, Peter, out of his will and instead gave his entire estate to his sister. Peter claimed family provision, alleging that he had been left with inadequate provision for his maintenance and advancement in life.

At the time of proceedings, Peter was 51, had three children (aged 23, 17 and 15), was effectively homeless and had significant financial needs. However, the executor argued that the deceased's decision to leave Peter out of the will was justified, given Peter's violent and aggressive behaviour towards the deceased and their 18-year estrangement prior to the deceased's death.

Section 100 Statements

The deceased made two section 100 statements accompanying both his 1996 will and his 2007 will, which explained his reasons for leaving Peter out of his wills, being:

  • That the relationship between Peter and the deceased had been characterised by animosity in the 22 years prior to the making of the will;
  • That Peter had inflicted verbal and physical abuse on the deceased; and
  • That the relationship between Peter and the deceased had irretrievably broken down.


The Court held that Peter should receive $520,000 from the estate (valued at approximately $800,000). In reaching this decision, the Court noted the following:

  • This case was not an estrangement case. Peter had made several attempts to continue and improve his relationship with his father, which the deceased firmly rejected.
  • That, contrary to the defence's submissions, there was no evidence that Peter's attempts at reconciliation had a secondary financial motive, and his attempts had been genuine.
  • Peter had demonstratable financial need, he had found himself homeless and living out of his car.
  • The deceased's rejection of Peter had contributed to Peter's present financial need.
  • The deceased bore significant responsibility for the negative relationship between himself and Peter.
  • The deceased's sister had relatively stable financial circumstances and did not demonstrate a significant need.

The Effect of the Section 100 Statements

The Section 100 statements were put into evidence, and the Court had regard to the statements in reaching their decision. However, as noted in the judgment, the statements came from a narrow perspective, and the deceased had failed in the statements to take any responsibility for his fraught relationship with Peter. Thus, the statements were given little weight in the Court's determination.

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