Written by Under NSW law, certain individuals can challenge a will through a family provision claim if they have not been adequately provided for. The recent Supreme Court case of Sutcliffe v Harper [2025] NSWSC 54 sheds light on how these claims are assessed and serves as a warning for both claimants and executors handling contested estates. In Sutcliffe v Harper, Mark Sutcliffe, an adult son, argued that his late mother’s will did not make adequate financial provision for him. His sister, Lisa Harper, was both the executor and primary beneficiary of their mother’s estate. The will allocated 60% of the residual estate to Lisa and 40% to Mark, but crucially, their mother’s primary asset—her home—did not form part of the estate because it was owned jointly with Lisa and passed to her automatically upon their mother’s death.
Mark argued that their mother had verbally expressed a wish to change her will to leave all her financial assets to him, since Lisa was already inheriting the house. However, the will remained unchanged, and Lisa distributed assets to other beneficiaries while Mark’s claim was pending. Many people mistakenly assume that informal statements made by a deceased person will hold legal weight. In this case, Mark presented evidence that his mother had told him she wanted to update her will to leave him more. However, because she never formally changed the document, the court upheld the written will. Under NSW law, family members who feel unfairly left out of a will can make a claim if they believe they were not adequately provided for. However, “adequate” does not necessarily mean “equal.” In Mark’s case, the court considered:
- His financial situation (he was self-employed with fluctuating income but owned a home and had savings);
- His past financial support from his mother (he had received over $60,000 in gifts before her death);
- His lack of caregiving contributions compared to Lisa, who had provided years of care for their mother.
Lisa, as executor, also distributed $141,000 from the estate in ‘gifts’ before Mark’s claim was resolved. The court found that this put her at risk of personal liability—executors must be careful not to distribute assets too soon, especially when a claim is pending.
Ultimately, the court found that while Mark was entitled to some further provision, his claim for $300,000 was excessive. The outcome in Sutcliffe v Harper highlights that family provision claims require strong evidence, financial need, and a clear legal strategy—and that courts will not override a valid will lightly. Challenging a will is not about disagreeing with a family member’s choices—it’s about ensuring that people who were financially dependent on the deceased are provided for. If you believe you have been unfairly left out of a will or not given adequate provision, it’s important to seek legal advice early. Similarly, if you’re an executor handling a contested estate, be cautious before distributing assets.