Why a challenge to a father's Will failed

When a parent leaves most or all of an estate to one child and little or nothing to another, the disappointed child often suspects something went wrong. Was the parent pressured? Did they really understand what they were signing? Sometimes those suspicions are well founded. Often they are not and a challenge that feels justified on emotion can fail decisively on the evidence at considerable cost.

A recent decision of the Supreme Court of New South Wales, D’Apice v Passas (No 2) [2026] NSWSC 570, is a clear example. An eldest daughter challenged her late father’s final will, which left his estate to her younger sister. She argued the will was made in “suspicious circumstances” and that her father had not truly known and approved its contents. The Court rejected every limb of the challenge, upheld the will, and dismissed her alternative claim for family provision. The case is a practical lesson in how hard it is to overturn a validly executed will and in what parents can do to prevent a dispute in the first place.

Knowledge and approval, and “suspicious circumstances”

For a will to be valid, the person making it (the testator) must have known and approved of its contents; that is, they must have understood and intended what the will says. Ordinarily, where a will appears to have been properly signed and witnessed and the testator had capacity, the Court will presume they knew and approved of it.

That presumption can be displaced. Where the circumstances surrounding the making of a will “excite the suspicion” of the Court, for example, where a person who benefits substantially was closely involved in preparing the will, the person seeking to uphold the will (here, the person propounding it for probate) carries the burden of affirmatively proving that the testator knew and approved of its contents. The suspicion does not have to be of fraud or wrongdoing; it is simply a circumstance calling for an explanation. The relevant rules sit within the framework of the Succession Act 2006 (NSW), including the Court’s power to grant probate in “solemn form” after a contested hearing.

Separately, even where a will is valid, an eligible person who has been left out can apply for a family provision order under section 59 of the Succession Act if they have not received adequate provision for their proper maintenance, education or advancement in life. But that claim depends heavily on the applicant’s actual needs and circumstances.

The facts: two wills, two daughters, and a lifetime of gifts

Alessio Puopolo died in October 2022, aged 93. His wife had died some years earlier. He was survived by two daughters: the plaintiff, Maria (the eldest), and the defendant, Josephine (the youngest).

Mr Puopolo had made two relevant wills. The earlier will, from 2003, divided his estate between his daughters. His final will, made in 2012, named Josephine as executor and left the estate to her. Probate of the 2012 Will was granted to Josephine in 2023. Notably, the 2012 Will recorded the deceased’s own statement that he wished “to treat my two daughters equally”, and two years later, in 2014, he made a statutory declaration affirming his intentions.

That language, wishing to treat his daughters equally while leaving the estate to one of them, sat at the heart of the dispute. But it has to be read against the broader picture. During his lifetime, Mr Puopolo had given multiple properties to each of his daughters. On the evidence, Maria had significant property holdings of her own, including investment properties and holiday homes, several of which had come from her father. Josephine, for her part, had provided a great deal of care and assistance to the deceased.

Maria challenged the 2012 Will, seeking to have probate revoked and the 2003 Will admitted instead. She argued the 2012 Will had been made in suspicious circumstances and that her father had not known and approved of it. In the alternative, if the will stood, she sought a family provision order out of the estate.

The arguments: a list of “suspicious circumstances”

Maria’s case pointed to a collection of matters said, individually or together, to be suspicious and to cast doubt on whether her father truly understood and approved of the 2012 Will. They included that the deceased had changed solicitors before making the will; that he was elderly (in his nineties); that the will was written in English rather than Italian; that it used the anglicised legal name of the daughter who benefited; that the 2012 Will was a substantial change from his previous will; and that the terms of the will, and of the later statutory declaration, were said to be internally inconsistent, in particular, the statement about treating his daughters “equally” alongside a gift of the estate to one of them.

Josephine’s answer was that the will was valid, that her father knew and approved of it, and that the apparent inconsistency disappeared once the lifetime gifts were taken into account: equal treatment had been achieved across his lifetime, not solely through the will.

The Court’s decision

Justice Bennett rejected the challenge in full. The Court was satisfied that the deceased had known and approved of his 2012 Will. The matters relied on by Maria, examined individually and collectively, did not establish the kind of suspicious circumstances that would displace the usual position, and the evidence affirmatively supported the conclusion that the will reflected the deceased’s understanding and intentions.

The apparent tension in the “treat my daughters equally” language was explicable. A parent can regard their children as treated equally when lifetime gifts are taken into account, even if the will itself favours one of them. Here, the deceased had given substantial property to each daughter during his life, and the later statutory declaration affirmed what he intended. The other matters – changing solicitors, advanced age without any frailty of mind, a will in English, the use of a daughter’s anglicised legal name, and the change from an earlier will – were not, in the circumstances, indicators that the deceased did not know and approve of what he was doing.

The family provision claim also failed. Maria had not been left without adequate provision in any meaningful sense: she had significant assets and property of her own, much of it received from her father during his lifetime, while Josephine had provided the greater share of care and assistance. The Court recorded that the case raised “no issue of principle" – it turned on its own facts.

The result: Maria’s claim was dismissed, and probate of the 2012 Will was granted to Josephine in solemn form (a grant made after a contested hearing, which is harder to disturb later). Costs were left to be agreed or decided separately.

There was also a pointed procedural footnote. The Court criticised the late and non-compliant preparation of the “Court Book" – the bundle of documents for the hearing, reminding practitioners that court directions and practice notes are not optional and that there is a statutory duty to assist the court to resolve disputes justly, quickly and cheaply. It is a useful reminder that how a case is run matters, not just its merits.

The lessons for families

This case is a textbook illustration of several points that matter to anyone making, or thinking about challenging, a will.

A validly made will is hard to overturn. Suspicion, hurt and surprise are not enough. To displace a will, the evidence must genuinely call its making into question, and where it does not, the will stands. Challenging a will is a serious, expensive step that should be taken only on careful advice.

If you treat your children differently, explain why in writing at the time. The single most protective thing Mr Puopolo did was to leave a record of his reasoning: a clear statement in the will and a later statutory declaration affirming his intentions. A contemporaneous statement of reasons, kept with the will, can answer a future challenge before it gathers momentum.

Document lifetime gifts. Much of this dispute dissolved once the Court considered the properties the deceased had given each daughter over the years. If you are “evening things up” through gifts during your life, keep clear records so your estate plan can be understood as a whole.

“Equal” can be measured across a lifetime, not just in the will. Parents often achieve fairness through a mix of lifetime help and testamentary gifts. Making that intention explicit avoids the appearance of inconsistency.

Family provision is about need, not disappointment. A child who is already well provided for, particularly one who has received substantial lifetime gifts, will struggle to obtain further provision, especially where another child has carried the burden of care.

Get proper, independent advice when making your will. A will prepared and witnessed by an experienced, independent solicitor, with the testator’s instructions and reasoning properly recorded, is far more resilient than a homemade or hastily changed document.

How Shire Legal can help

A clear, well-documented estate plan is the best protection against a dispute that can divide a family and consume an estate in legal costs. At Shire Legal, we help clients across the Sutherland Shire and beyond to prepare wills that are properly executed, that record the reasons for any unequal treatment, and that take account of lifetime gifts and the realities of family care. We also advise clients who are considering, or defending, a challenge to a will or a family provision claim.

If you would like advice tailored to your family’s situation, contact Shire Legal or book an appointment to speak with our team.

This blog provides general information and should not be construed as legal advice. Laws may have changed since the publication of this content. We recommend consulting with a qualified legal professional to ensure compliance with current legislation and to address specific circumstances.