The Contest in Family Provision Act Claims – are you or are you not the deceased’s child? Recent case summary of Balla v Roberto Bei as Executor of the Estate of the Late Giovanni Bei [2020] WASC 348

The Supreme Court of Western Australia recently considered in Balla v Roberto Bei as Executor of the Estate of the Late Giovanni Bei [2020] WASC 348 the Court:

  • issues about a Plaintiff’s proof of paternity;
  • the standard of proof required to prove paternity; and
  • what is meant by the requirement in the Family Provision Act 1972 (WA) (Act) that a ground or fact be proved: “if the Court is reasonably satisfied of the existence of the ground or fact”.

Under the Act:

“Where a provision of this Act requires the Court to be satisfied of the existence of any ground or fact or as to any other matter, it is sufficient if the Court is reasonably satisfied of the existence of that ground or fact or as to that other matter”.

In addition to the parentage issue, the Court also considered:

  • the impacts on small Estates of applications made under the Act, the value of the Deceased’s Estate at the date of the hearing was $297,859.45;
  • competing adult children’s applications; and
  • moral claims where a party is a beneficiary under a Will but not an eligible applicant under the Act.

Summary of Fact

The two Plaintiffs in the proceedings were the Deceased’s daughters from the Deceased’s first marriage for whom the Deceased made no provision in his Will.

The Deceased gifted in his Will:

  • 50% of the Deceased’s residuary Estate to his son; and
  • 50% of the Deceased’s residuary Estate to the Deceased’s “friend” whom he treated as a daughter during the later part of his lifetime.

One of the Plaintiff daughter’s paternity was in issue. That daughter was born out of marriage in Italy 2 years before the Deceased married his first wife.

The Court heard evidence:

  • from a lawyer in Italy about the laws in Italy at the relevant time requiring a recognition of parentage by a declaration following marriage;
  • regarding the Plaintiff’s Deed of Birth;
  • that the Deceased had attended Rome in 1955 and declared that the Plaintiff whose paternity was in issue, was the Deceased’s child after the Deceased’s marriage to his first wife; and
  • that the Deceased had raised the Plaintiff as his child during the Plaintiff’s lifetime.

The Decision

The Court clarified that:

  • an application under the Act can be made “by a child of the deceased living at the date of the deceased’s death”;
  • a “child” is recognised as a “child of the deceased” if parentage is admitted or established against the deceased parent during the deceased’s lifetime; and
  • there must be sufficiently clear and cogent evidence of parentage such that “the Court is reasonably satisfied” that the applicant is a “child” of the deceased parent.

The Court discussed:

  • the standard of proof required under the Act and whether something higher than the civil standard of proof, the balance of probabilities, is required; and
  • whether the strength of the evidence necessary to prove paternity was greater because of the serious nature of what the Plaintiff sought to prove – paternity (the Briginshaw v Briginshaw test).

The Court was “reasonably satisfied” that the Plaintiff was the Deceased’s daughter and that the Deceased had admitted her parentage during his lifetime.

The Court also commented that:

  • the Plaintiff daughters as adult children did not need to show a special need or special claim because where an adult child falls on hard times and where assets are available in the Estate, there remains a moral duty for a deceased to provide for his or her children; and
  • the “friend’s” entitlement to make a claim under the Act arose because she was a beneficiary under the Deceased’s Will and, therefore, she had a “moral claim” arising from the “facts” that she had formed a very close relationship with the Deceased, cared for him and he treated her like a daughter.

This decision confirms that “friends” can be allowed for in a Will even subject to challenge by the deceased’s family members. And, why not.  A good friend, like a provision in a Will, share a remarkable attribute; choice.

In weighing the competing interests of the Deceased’s biological children and the “friend” and the fact that there were insufficient assets in the Deceased’s Estate to make adequate provision for all parties, the son and the “friend’s” entitlements under the Deceased’s Will were reduced by 25% each of the net value of the Estate and the Estate was divided as follows:

  • 20% to the First Plaintiff daughter;
  • 30% to the Second Plaintiff daughter;
  • 25% to the “friend” (a reduction of 50% from that left to her in the Will), the Second Defendant; and
  • 25% to the Third Defendant son.

Our experienced Kott Gunning team remain ready and able to assist you with advice about all Wills and Estate matters, including claims made under the Family Provision Act or challenges to provisions of Wills.

We can assist you understand your legal rights.

Please contact us with your personal enquiry, we can help.

Claire Hawke-Gundill – Partner – 

Peter Mariotto – Special Counsel –

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.