When the estate plan doesn't go to plan

Most people who sit down to make a will are not trying to be unfair. They are trying to look after the people they love with the resources they have. But good intentions are not the same as a good plan and when the plan depends on something outside the will, such as a life insurance policy, even a thoughtful parent can leave the people who need help most without enough to live on.

A recent decision of the Supreme Court of New South Wales, Re Estate Weinberger [2026] NSWSC 158, is a quietly moving example. It involved a modest estate, a son with significant disabilities, a former partner with serious health problems of her own, and a father whose carefully imagined arrangements simply did not survive contact with reality. It is also a useful reminder of how family provision law works in New South Wales and of why estate planning for a vulnerable beneficiary deserves real care.

Family provision in New South Wales

In New South Wales, a will does not have the last word in every case. Chapter 3 of the Succession Act 2006 (NSW) allows certain people called “eligible persons”, including children of the deceased to ask the Court for a “family provision order” if the will (or the rules of intestacy) leave them without adequate provision for their proper maintenance, education or advancement in life.

The Court approaches the question in two stages. First, under section 59(1)(c), it asks whether the applicant has in fact been left without adequate provision, judged from a present-day perspective and against contemporary community standards. Second, if the answer is yes, section 59(2) asks what provision, if any, ought now to be made. In working through these questions, the Court considers a list of factors set out in section 60(2) – things like the relationship between the parties, their financial resources and needs, any obligations the deceased owed, and the provision (if any) the deceased made during their lifetime.

Importantly, the words “adequate” and “proper” are relative. They depend entirely on the circumstances of the particular case. The Court does not simply ask “was this person treated equally?" It tries to stand in the shoes of a wise and just testator and ask what that person ought to have done in light of everything now known.

The facts: two families and a father who could not provide much

The deceased, Mr Weinberger, died in April 2023 at the age of 69, leaving a will made in March 2021. His estate was small. Its principal asset was a demountable cabin on a leased site, valued for probate at around $400,000 (and perhaps up to $500,000 if a buyer could be found). The cash available for distribution was only about $55,000.

Over his life the deceased had two relationships that produced children. The first was with Marilane, the mother of the plaintiff, Marcus. Marcus, aged 37 at the time of the hearing, has been diagnosed with an autism spectrum disorder and schizophrenia, is prone to psychotic episodes, lives alone and has no work prospects. He relies on the disability support pension and a substantial NDIS package in excess of $300,000 a year, which funds support workers but not his ordinary living or medical expenses. So significant is his disability that he gave no evidence and did not attend the hearing; his mother brought the claim as his tutor.

The deceased’s second family was with the defendant, Marcia, with whom he had a daughter, Nina. Marcia, aged 60, is in poor health with an autoimmune condition, has a modest income and superannuation of around $243,000, and cares for her adult children and her elderly mother. The Court was careful to note she had genuine needs of her own.

By his will, the deceased left a few personal effects to various people, gave his car to Marcus, and left the whole of the residue of his estate to Marcia (and, if she did not survive him, to her children). On its face, that left Marcus with very little from the estate itself.

The plan that miscarried

The key to the case is what the deceased intended to do outside his will. Knowing he was terminally ill, he had a life insurance policy he expected would pay around $155,000 on his death. The insurer’s records named Marcus as the beneficiary of 77% and Marcia as to 23%. The deceased even emailed both mothers explaining that Marcus should claim on the policy because there was “around $120k for him there”, and told Marcia there was “around $35,000 for you there”.

In other words, the deceased’s real plan was to provide for Marcus chiefly through the insurance, and to leave the modest estate to Marcia. Had that plan worked, Marcus would have received roughly $103,950 from the policy, plus the car.

It did not work. Because he was terminally ill, the deceased surrendered the policy in November 2022 and received an advance payout of about $135,000. From that, $50,000 was paid to Marilane on trust for Marcus. What happened to the remaining $85,000 was not explained in evidence, but it did not reach Marcus, Marcia or any of the children. The result was that the structure the deceased had relied on to look after his disabled son collapsed, and the will alone made no substantial provision for Marcus.

The issues, the arguments and the Court’s decision

The central questions for Justice Lindsay were the two statutory stages: had Marcus been left without adequate provision, and if so, what provision ought now to be made out of a very small estate in which a second family also had real needs?

There was no real contest about Marcus’s eligibility or his vulnerability, and no criticism was made of him. The defendant’s case, sensibly, focused on the size of the estate and the competing needs of Marcia. Late in the hearing the defendant made an open offer of a $70,000 legacy plus $50,000 costs; the plaintiff argued for $110,000 plus costs. The difficulty was that the plaintiff’s own legal costs were estimated at around $105,000 (about $80,000 on a party-and-party basis), and Marcus also owed his mother an estimated $101,231 for the loans that helped him buy and renovate a small “tiny house” to live in, since he could no longer live with her.

The Court was comfortably satisfied that Marcus had been left without adequate provision. His needs even with the NDIS package, which does not cover ordinary living costs could readily absorb the entire net estate. His Honour indicated he would make a family provision order of a legacy of up to $125,000, but on an important condition: that the legal costs borne by the estate and the parties be capped at no more than $70,000. He expressly invited both sides’ lawyers to moderate their costs, recognising that in a small estate, unrestrained legal costs can devour the very fund the parties are fighting over.

Just as significantly, the Court did not simply hand money to a vulnerable beneficiary. It flagged that a protective regime should be considered potentially a financial management order under section 41 of the NSW Trustee and Guardian Act 2009 (NSW), or a trust so that Marcus’s legacy would be managed for his benefit rather than left in his unsupported control. The Court reserved the final figure until the cost position and the protective arrangements were settled.

The lessons for families

This case is a small estate with no villains, which is exactly what makes it instructive. A few practical lessons stand out.

Don’t make your plan depend on things outside your will. The deceased intended to look after Marcus mainly through life insurance and superannuation-style arrangements. Those assets often pass independently of the will, and circumstances here, surrendering the policy while terminally ill, can defeat the plan entirely. If a particular person must be provided for, build that into a coordinated plan, not a hope pinned to one policy.

Plan deliberately for a vulnerable beneficiary. Leaving a lump sum outright to a person who cannot manage money, or whose means-tested benefits could be affected, can do more harm than good. A properly drafted protective trust (sometimes called a special disability trust or a protective testamentary trust) allows funds to be managed for the person’s benefit, often without jeopardising support like the NDIS or a pension. The Court’s instinct here to consider financial management rather than a bare payment — reflects exactly that concern.

Remember that family provision can override your will. A will is not the end of the story. Adult children, including those with disabilities, former partners and others can apply for provision. Anticipating likely claims and addressing them in your planning is far better than leaving your loved ones to litigate.

Beware the cost of litigation in a small estate. The most striking feature of this case is the Court’s willingness to cap legal costs. Where an estate is modest, costs can consume it. Early, sensible advice and a willingness to resolve disputes is almost always cheaper than a contested hearing.

Keep your plan current. The deceased’s circumstances changed dramatically terminal illness, a surrendered policy, and a son who could no longer live with his mother. An estate plan made years earlier rarely keeps pace with life. Review your will, your beneficiary nominations and your insurance whenever your circumstances change.