Understanding the importance of Section 100 statements in family provision claims

Section 100 of the Succession Act 2006 (NSW) plays a pivotal role in family provision proceedings by allowing certain statements made by a deceased person to be admitted as evidence. This provision enables the court to consider the deceased's intentions and reasons for their testamentary dispositions, especially when disputes arise over the adequacy of provision for eligible persons.

Overview of Section 100

Section 100 permits the admission of statements made by a deceased person concerning their testamentary intentions, even if such statements would typically be excluded under hearsay rules. These statements can be oral or written and are admissible if they relate to matters the deceased could have testified about if alive.

Key aspects include:

• Definition of "Statement": Broadly encompasses any representation of fact, whether or not in writing.

• Admissibility: Statements are admissible as evidence of any fact stated, provided the deceased could have given direct oral evidence on the matter.

• Proof Requirements: Oral statements must be proven by someone who directly heard or perceived them. Written statements can be proven by producing the original document or an authenticated copy.

• Weight of Evidence: The court assesses the weight of such statements by considering factors like the timing of the statement and any potential motive for misrepresentation.

To illustrate the application of Section 100, we examine the 2024 Supreme Court case of Bohen v Mitchelmore [2024] NSWSC 171.

Bohen v Mitchelmore [2024] NSWSC 171

Background

In Bohen v Mitchelmore, the Supreme Court of New South Wales considered family provision claims brought by two adult daughters, Tina and Angela Bohen, against the estate of their late mother, Caterina Felice Bohen. The deceased’s 2016 will left the vast majority of her estate to her five grandchildren (the claimants’ children), effectively skipping a generation. The daughters received only the furniture and contents of the deceased’s home — items of sentimental, but not financial, value.

The plaintiffs claimed that their mother had failed to make adequate provision for them and challenged the will under Part 3.2 of the Succession Act 2006 (NSW).

The Section 100 Statements

Section 100 of the Succession Act permits the admissibility of statements made by the deceased concerning their testamentary intentions or reasons for making (or not making) provision for certain persons. These statements can be used in family provision claims to help the Court assess the deceased's state of mind and intentions.

In this case, two statements (often referred to as "Section 100 statements") accompanied the deceased’s 2015 and 2016 wills.

2015 Statement

The deceased stated:

• She was leaving her estate to her grandchildren.

• Her daughters had already received “substantial” inheritances from her brother in 2007.

• Therefore, she felt they had “no need” and decided to leave the estate to her grandchildren instead.

2016 Statement

The second, more detailed statement made additional claims:

• Angela Bohen had been estranged from the deceased and had allegedly said she did not want any of her mother’s money.

• Tina Bohen failed to inform the deceased of the birth of her second child and had limited contact.

• Based on this alleged lack of contact and their previous inheritance, the deceased reaffirmed her decision to exclude her daughters.

Court’s Analysis and Findings

Justice Basten conducted a thorough evaluation of the deceased's Section 100 statements and compared them against the evidence provided by the plaintiffs.

Tina Bohen

• The Court found that Tina had a strong and sustained relationship with her mother.

• The claims made in the 2016 statement about Tina’s failure to disclose her child’s birth and lack of contact were proven to be false.

• Tina had maintained regular contact from overseas, sent gifts, made phone calls, and even gave her mother $1,000 during a 2016 visit.

• The Court held that the Section 100 statement was patently false in its portrayal of Tina's relationship with the deceased.

Angela Bohen

• While Angela's relationship with her mother experienced some periods of estrangement, it was not a complete rupture.

• Angela made efforts to maintain contact and had even arranged a visit in 2019 with her youngest child.

• The Court found that the statement about Angela saying she “did not want any of [the deceased’s] money” was likely a misinterpretation or deliberate distortion by the deceased.

• Justice Basten held that the statements were exaggerated, hyperbolic, or false, and thus diminished their evidentiary weight.

Treatment of Section 100 Statements

Justice Basten carefully considered the principles guiding admissibility and weight under Section 100. His Honour confirmed:

• The statements were admissible under Section 100.

• However, admissibility is not the same as credibility or reliability.

• Because the deceased’s claims were shown to be inconsistent with the daughters’ evidence (which was accepted as truthful), the statements were given little weight.

Outcome

The Court:

• Declared that provision should be made from the estate in favour of both plaintiffs.

• Ordered that each daughter receive one-third of the net residuary estate (after liabilities and costs).

• Recognised that, while the grandchildren were the named beneficiaries, it was the daughters who had the primary responsibility for their upbringing, and provision to the daughters would indirectly benefit the grandchildren.

• Concluded that the deceased had failed to give proper consideration to the claims of her daughters, particularly given the false or misleading nature of her Section 100 statements.

Key Lessons from the Case

1. Section 100 statements must be carefully scrutinised
   Just because a statement is admissible does not mean it is reliable. Courts will weigh it against other evidence, including the conduct of the applicants.

2. False or exaggerated claims can undermine testamentary wishes
   If the Court finds that the deceased made decisions based on incorrect or unjustified beliefs, the moral force of the will is weakened.

3. Estrangement is not determinative
   Estrangement, even if proven, does not eliminate the deceased’s moral duty to provide for children, especially where the estrangement is not severe or where both parties contributed to it.

4. Needs of children can justify provision to parents
   Where excluded children are responsible for the upbringing of grandchildren, the Court may provide for the children even if the grandchildren are beneficiaries.

5. The existence of earlier inheritances does not bar provision
   While relevant, a past inheritance (such as from another relative) is not a complete defence to a family provision claim.

Bohen v Mitchelmore offers a comprehensive example of how Section 100 statements are treated by the Court in family provision claims. The case highlights that such statements are not immune from challenge and must be supported by credible, factual evidence. Courts will not defer to the testator’s wishes blindly, especially when those wishes are based on untrue assertions. For estate planning professionals and clients alike, this decision underscores the importance of clarity, truthfulness, and fairness in explaining testamentary intentions — especially when making decisions that depart from the expected order of inheritance.