Lessons from a Contested Will Dispute
A recent decision of the NSW Supreme Court, D’Apice v Passas (No 2) [2026] NSWSC 570, provides important lessons for anyone making a Will, and for adult children who may be contemplating a family provision claim.
The case involved a dispute between two sisters over their late father’s estate. The central question was whether the father’s last Will—which left almost everything to his youngest daughter—was valid, or whether it had been made under “suspicious circumstances” that should see it set aside.
The Court ultimately dismissed the challenge, upholding the Will. Here’s what happened and why the Court reached its decision.
The Background
The late Mr Puopolo died at 93, survived by his two daughters, Maria (the plaintiff) and Josephine (the defendant).
The 2012 Will left the bulk of his estate, including the family home, to Josephine.
The 2003 Will (which Maria sought to reinstate) had split his residual estate equally between both daughters.
Maria challenged the 2012 Will, arguing her father did not truly know or approve of its contents, pointing to several “suspicious circumstances.” In the alternative, she sought a “family provision” order from the Court, arguing she had not been left adequate provision for her proper maintenance.
The Key Issue: What Does “Treat My Daughters Equally” Mean?
A major point of contention was a clause in the 2012 Will where Mr Puopolo stated: “I wish to treat my two daughters equally.” Maria argued this was contradictory because the same Will left her nothing while giving her sister everything.
The Court rejected this argument. The critical factor was that the clause did not exist in isolation. The Will went on to list significant assets Mr Puopolo had already given to Maria during his lifetime, including:
Transferring a company (which owned several properties) to her control.
Giving a property to her son.
The Court accepted that Mr Puopolo was looking at the “big picture” of equality over his lifetime, not just the division of his estate upon death. He had already provided Maria with substantial wealth, so leaving his remaining assets to Josephine was a way of “squaring the ledger” and treating them equally overall.
Other “Suspicious Circumstances” Rejected
Maria raised several other concerns, but the Court found none of them were enough to invalidate the Will:
Changing solicitors & his age: Mr Puopolo used a new solicitor for his 2012 Will and was 82 years old. The Court noted there was no evidence of mental or physical frailty. He was still driving, socialising, and managing his own affairs.
The Will was in English: Although Italian was his first language, the Court pointed out that Mr Puopolo had a long history of signing legal documents (including previous Wills, trust deeds, and mortgages) in English without issue.
Using an anglicised name: The Will used “Josephine” instead of her Italian name “Giuseppina.” The Court found this unremarkable, as she had legally changed her name years earlier.
A later Statutory Declaration: Two years after the Will, Mr Puopolo made a statutory declaration explaining his reasons. Even though draft versions contained minor errors, the final signed declaration was clear and consistent with his Will. The Court accepted it as further proof of his true intentions.
The Family Provision Claim (The “Alternative” Argument)
Since the Will was upheld, the Court also considered Maria’s backup claim for further provision from the estate. This claim failed decisively.
The key reason was lack of need. The evidence showed:
Maria and her husband jointly owned over $13.8 million in assets, including multiple homes, investment properties, and a holiday house.
Maria also controlled a family trust with properties worth over $4 million.
They had significant savings, shares, and superannuation.
The Court found that Maria was not in any financial need. In contrast, the Court recognised Josephine’s stronger “moral claim” on the estate, as she had provided extensive care and assistance to both parents for many years, especially after their mother’s dementia diagnosis.
Key Takeaways for Clients
This case offers several practical lessons for estate planning and potential disputes:
Context is Everything: A statement in a Will about “equal treatment” does not necessarily mean an equal split of the estate. It can refer to lifetime gifts and overall fairness. If you have already given one child significant assets during your lifetime, your Will should clearly explain this—just as Mr Puopolo’s did.
Explain Your Reasons: While not always necessary, including a statement of reasons (either in the Will itself or in a separate document like a statutory declaration) can be powerful evidence of your true intentions and help defeat a later challenge.
Adult Children Are Not Automatically Entitled: Being left out of a parent’s Will does not guarantee a successful family provision claim. If you are already financially secure and have received significant inter vivos (lifetime) gifts, a court is unlikely to make an order in your favour.
“Suspicious Circumstances” Require Real Evidence: A Will is not invalid just because it represents a change from previous Wills, is prepared by a new solicitor, or is executed in old age. To displace the presumption that a testator knew and approved their Will, you need concrete evidence of something genuinely amiss—not just speculation.
Conclusion
The Court’s decision in D’Apice v Passas confirms that NSW courts will respect a testator’s clear and rational wishes, even where they result in an unequal distribution between children. It also underscores that a family provision claim is not a tool to “rewrite” a Will out of a sense of unfairness, but a safety net for those genuinely in need.
If you are considering updating your Will, or if you believe you have a claim against an estate, obtaining expert legal advice is essential. Every family’s situation is unique, and these principles must be applied to your specific circumstances.
This blog post is a summary of a published court judgment (D’Apice v Passas (No 2) [2026] NSWSC 570) and is intended for general informational purposes only. It does not constitute legal advice. You should consult with one of our qualified lawyers for advice regarding your individual situation.
