Pronesti v Napoli (No 2) [2026] NSWSC 856 | Case summary

Pronesti v Napoli (No 2) [2026] NSWSC 856 | Case summary | Zoe

Court

Supreme Court of NSW

Decision date

2026-07-20

Before

Bennett J

Catchwords

SUCCESSION — Family provision — Application by plaintiff for provision out of deceased’s estate — Whether plaintiff is eligible person to make application — Whether plaintiff is child of deceased — Plaintiff alleges his deceased maternal uncle is his biological father — Deceased died in 2003 — Plaintiff says he was told in 2023 by mother that deceased was plaintiff’s father — Defendant says plaintiff was told deceased was allegedly his father before the deceased’s death — Plaintiff obtained DNA test which concluded plaintiff and his brother do not share a common paternal line — Where plaintiff obtains orders under the Status of Children Act 1996 (NSW) requiring two of deceased’s sons to undergo a parentage testing procedure — Where two of deceased’s sons did not undergo ordered parentage testing procedures — Consideration of what inferences may drawn in the circumstances SUCCESSION — Family provision — Proceedings not commenced within time — Proceedings commenced 20 years after deceased’s death — Plaintiff says he was only told by mother that deceased was his biological father months before proceedings were commenced — Plaintiff then went into surgery and recovered for a month — Plaintiff instructed solicitors and obtained a DNA test which showed his brother and him did not share a common paternal line — Plaintiff had to change solicitors after being advised of a potential conflict with first solicitor — Whether sufficient cause shown to extend time — Consideration of relevance of increased value of estate between deceased’s death and time of application — Consideration of relevance of changed circumstances of plaintiff and defendant between deceased’s death and time of application SUCCESSION — Family provision — Claim by adult child — Bare paternity — Where plaintiff not acknowledged as son by father — Consideration of the relevance of bare paternity to a family provision claim SUCCESSION — Family provision — Claim by adult child — Whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made — Plaintiff’s principal asset is his principal place of residence — Plaintiff likely to lose home in the context of an acrimonious separation from former wife — Plaintiff has significant mental health challenges — Where defendant argues insufficient disclosure of income and expenditure made — Consideration of whether buffer for contingencies necessary — Where quantum of property available to be designated as notional estate is cash of $28 million SUCCESSION — Family provision — Notional estate — Whether order designating property as notional estate should be made — Deceased’s main assets at time of death were two valuable properties held as joint tenants with other family members — Where deceased’s interests in properties passed to the other joint tenants by survivorship — Properties in question have since been sold and proceeds of sale are in a bank account — Where no other remaining assets of estate able to be identified given effluxion of time

Source

Original judgment source is linked above.

Catchwords

SUCCESSION — Family provision — Application by plaintiff for provision out of deceased’s estate — Whether plaintiff is eligible person to make application — Whether plaintiff is child of deceased — Plaintiff alleges his deceased maternal uncle is his biological father — Deceased died in 2003 — Plaintiff says he was told in 2023 by mother that deceased was plaintiff’s father — Defendant says plaintiff was told deceased was allegedly his father before the deceased’s death — Plaintiff obtained DNA test which concluded plaintiff and his brother do not share a common paternal line — Where plaintiff obtains orders under the Status of Children Act 1996 (NSW) requiring two of deceased’s sons to undergo a parentage testing procedure — Where two of deceased’s sons did not undergo ordered parentage testing procedures — Consideration of what inferences may drawn in the circumstances SUCCESSION — Family provision — Proceedings not commenced within time — Proceedings commenced 20 years after deceased’s death — Plaintiff says he was only told by mother that deceased was his biological father months before proceedings were commenced — Plaintiff then went into surgery and recovered for a month — Plaintiff instructed solicitors and obtained a DNA test which showed his brother and him did not share a common paternal line — Plaintiff had to change solicitors after being advised of a potential conflict with first solicitor — Whether sufficient cause shown to extend time — Consideration of relevance of increased value of estate between deceased’s death and time of application — Consideration of relevance of changed circumstances of plaintiff and defendant between deceased’s death and time of application SUCCESSION — Family provision — Claim by adult child — Bare paternity — Where plaintiff not acknowledged as son by father — Consideration of the relevance of bare paternity to a family provision claim SUCCESSION — Family provision — Claim by adult child — Whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made — Plaintiff’s principal asset is his principal place of residence — Plaintiff likely to lose home in the context of an acrimonious separation from former wife — Plaintiff has significant mental health challenges — Where defendant argues insufficient disclosure of income and expenditure made — Consideration of whether buffer for contingencies necessary — Where quantum of property available to be designated as notional estate is cash of $28 million SUCCESSION — Family provision — Notional estate — Whether order designating property as notional estate should be made — Deceased’s main assets at time of death were two valuable properties held as joint tenants with other family members — Where deceased’s interests in properties passed to the other joint tenants by survivorship — Properties in question have since been sold and proceeds of sale are in a bank account — Where no other remaining assets of estate able to be identified given effluxion of time

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Pronesti v Napoli (No 2) [2026] NSWSC 856

Hearing dates: 23-24 February 2026

Date of orders: 20 July 2026

Decision date: 20 July 2026

Jurisdiction: Equity – Probate and Family Provision List – Family Provision

Before: Bennett J

Decision: (1) Declare that the plaintiff, Peter Pronesti, is the son of the late Salvatore Napoli (the Deceased).
(2) Pursuant to clause 11(6) of Schedule 1 to the Succession Act 2006 (NSW) (continuing section 41A of the Probate and Administration Act 1898 (NSW)), letters of administration of the Deceased’s estate be granted to the Plaintiff for the sole purpose of dealing with the Plaintiff’s application.
(3) The time for the making of this application be extended up to and including the date of the filing of the Summons.
(4) Subject to order (5) below, the parties are to provide by email to the Chambers of Bennett J agreed short minutes of order to give effect to these reasons for judgment, including in relation to the designation of property as notional estate, and to resolve the issue of costs by 4:00pm on 17 August 2026.
(5) If agreement as to the appropriate orders to give effect to these reasons for judgment, including in relation to the designation of property as notional estate, is unable to be reached:
(a) Each party is to provide short minutes of order containing their proposed orders and brief written submissions not exceeding 5 pages in support of their proposed orders by email to the Chambers of Bennett J and serve them on the opposing side by 4:00pm on 17 August 2026;
(b) Any written submissions in reply not exceeding 5 pages are to be provided by email to the Chambers of Bennett J and served on the opposing side by 4:00pm on 24 August 2026; and
(c) Any party wishing to make a submission as to the appropriate orders has leave to file and serve an affidavit in support of their costs application.
(6) The issue of costs and notional estate will be dealt with on the papers.
(7) The exhibits are to be returned and they are to be retained intact by the producing party until the expiry of the time to file an appeal or until any appeal is determined.

Catchwords: SUCCESSION — Family provision — Application by plaintiff for provision out of deceased’s estate — Whether plaintiff is eligible person to make application — Whether plaintiff is child of deceased — Plaintiff alleges his deceased maternal uncle is his biological father — Deceased died in 2003 — Plaintiff says he was told in 2023 by mother that deceased was plaintiff’s father — Defendant says plaintiff was told deceased was allegedly his father before the deceased’s death — Plaintiff obtained DNA test which concluded plaintiff and his brother do not share a common paternal line — Where plaintiff obtains orders under the Status of Children Act 1996 (NSW) requiring two of deceased’s sons to undergo a parentage testing procedure — Where two of deceased’s sons did not undergo ordered parentage testing procedures — Consideration of what inferences may drawn in the circumstances SUCCESSION — Family provision — Proceedings not commenced within time — Proceedings commenced 20 years after deceased’s death — Plaintiff says he was only told by mother that deceased was his biological father months before proceedings were commenced — Plaintiff then went into surgery and recovered for a month — Plaintiff instructed solicitors and obtained a DNA test which showed his brother and him did not share a common paternal line — Plaintiff had to change solicitors after being advised of a potential conflict with first solicitor — Whether sufficient cause shown to extend time — Consideration of relevance of increased value of estate between deceased’s death and time of application — Consideration of relevance of changed circumstances of plaintiff and defendant between deceased’s death and time of application SUCCESSION — Family provision — Claim by adult child — Bare paternity — Where plaintiff not acknowledged as son by father — Consideration of the relevance of bare paternity to a family provision claim SUCCESSION — Family provision — Claim by adult child — Whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made — Plaintiff’s principal asset is his principal place of residence — Plaintiff likely to lose home in the context of an acrimonious separation from former wife — Plaintiff has significant mental health challenges — Where defendant argues insufficient disclosure of income and expenditure made — Consideration of whether buffer for contingencies necessary — Where quantum of property available to be designated as notional estate is cash of $28 million SUCCESSION — Family provision — Notional estate — Whether order designating property as notional estate should be made — Deceased’s main assets at time of death were two valuable properties held as joint tenants with other family members — Where deceased’s interests in properties passed to the other joint tenants by survivorship — Properties in question have since been sold and proceeds of sale are in a bank account — Where no other remaining assets of estate able to be identified given effluxion of time

Parties

Applicant/Plaintiff:

Pronesti

Respondent/Defendant:

Napoli (No 2)

Legislation Cited (18)

Succession Act 2006(NSW)

Probate and Administration Act 1898(NSW)

Status of Children Act 1996(NSW)

Cited:** Evidence Act 1995(NSW)ss 60, 77, 136, 140

Family Law Act 1975(Cth)

Family Provision Act 1982(NSW)

Succession Amendment (Family Provision) Act 2008(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Civil Procedure Act 2005(NSW)

Act 1996(NSW)

Status of Children Regulation 2019(NSW)

Regarding the Status of Children Regulation 2019(NSW)

Provision Act 1982

Children Act 1996

Amendment (Family Provision) Act 2008

Law Act 1975

Cases Cited: Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Blendell v Blendell [2020] NSWCA 154
Blendell v Byrne; Estate of Noeline Joan Blendell [2019] NSWSC 583
Brewer v Ney [2023] NSWSC 526
Cetojevic v Cetojevic [2006] NSWSC 431
Chalik v Chalik [2025] NSWCA 136
Clayton v Clayton [2023] NSWSC 399
Collings v Vakas [2006] NSWSC 393
Cooper v Cooper [2018] NSWSC 851
Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62
El-Bayeh v El-Bayeh [2025] NSWSC 1177
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Frank v Angell (2024) 116 NSWLR 1; [2024] NSWCA 264
G v H (1994) 181 CLR 387; [1994] HCA 48
Gersbach v Blake [2011] NSWSC 368
Harris v Carter [2020] NSWSC 196
Hornby v Cavenagh [2001] NSWSC 689
Hudson v Colliers International (NSW) Pty Ltd [2026] NSWCA 88
In the Marriage of Bonnici (1991) 105 FLR 102
In the matter of Hoju Jobs Pty Ltd [2021] NSWSC 302
Jepson v Jepson (No 8) [2025] FedCFamC1F 146
Jodell v Woods [2017] NSWSC 143
John Holland Pty Limited v Kellog Brown & Root Pty Ltd [2015] NSWSC 451
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Leue v Reynolds (1986) 4 NSWLR 590
Limberger v Limberger [2021] NSWSC 474
Mayfield v Lloyd-Williams [2004] NSWSC 419
Mills v Dodds [2025] NSWSC 396
Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163; [1929] HCA 25
Morton v Little [2005] NSWSC 36
Nicholls v Hall [2007] NSWCA 365
Novak-Niemela v Perpetual Trustee Co Ltd [2002] NSWSC 251
Panagopoulos v Panagopoulos [2022] NSWSC 1151
Papantoniou v Foundouradakis [2023] NSWSC 1374
Pethers v Pethers (No 2) [2025] NSWSC 561
Phillip Seeto v Kim Yum Bong Seeto [2013] NSWSC 1232
Pilatos v Whillier [2025] NSWSC 1221
Pillinger v Lees [2024] NSWSC 1067
Pronesti v Napoli [2024] NSWSC 1049
Re Estate Harriet Cassel [2000] NSWSC 294
Re Fulop (deceased) (1987) 8 NSWLR 679
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Smith v Johnson [2015] NSWCA 297
SSABR Pty Ltd v AMA Group Limited [2024] NSWCA 175
Stansfield v National Australia Trustees Ltd [2004] NSWSC 1107
State of New South Wales v Stanley [2007] NSWCA 330
Stone v Stone [2016] NSWSC 605
Tarbes v Taleb [2023] NSWSC 565
Taylor v Farrugia [2009] NSWSC 801
Toppi v Toppi (No 3) [2025] NSWSC 733
Verzar v Verzar [2014] NSWCA 45
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Watson v Foxman (1995) 49 NSWLR 315

Angela was appointed executor under the last will of the deceased, dated 23 September 1988 (the Will), where he left the whole of his estate to Angela. If Angela did not survive the deceased, the whole of the deceased’s estate was left to Maria, Joe and Tony, in equal shares.
No application for probate has been or ever was made by Angela. Tony says this was because all of the deceased’s property passed by survivorship.
Tony has given evidence as to the estate of the deceased. While the precise contents of the deceased’s estate are explored further at [15]-[23], what is not in dispute is that during his lifetime, the deceased owned two pieces of real property. These were:
X Caddens Road, Orchard Hills in the State of New South Wales (the Caddens Road Property), which was co-owned by the deceased and Angela as joint tenants; and
X Castle Road, Orchard Hills in the State of New South Wales (the Castle Road Property), which was co-owned by the deceased, Angela, and three of their children, Maria, Joe and Tony as joint tenants (together, the Properties).
The Properties were sold to a developer, and settlement took place on 1 October 2024. The contract price for the Properties (together) was $71,979,560. Capital gains tax and other fees and outgoings were due on the sale of the Properties.
The deceased and Angela also appear to have carried on a farming business through a partnership known as S and A Napoli Orchard Hills until the deceased’s death in 2003. The business was carried on by Angela herself until about 2006. There is no information provided as to the assets of the partnership.
At the time of his death the deceased owned a Mazda E2000 light truck and Nissan Pulsar sedan. Angela does not drive. She sold the Nissan Pulsar sedan to Tony for $1,000.
Tony says the deceased owned some farm equipment, a Masset Ferguson tractor, a David Brown tractor and farm implements. The deceased also left “a few tools in the shed”. He had what Tony compendiously described as “the usual household and personal effects”. All of the equipment has been disposed of due to the sale of the Caddens Road Property.
Tony is not aware of the value of any other of the deceased’s assets at the time of his death, such as bank account balances, held by the deceased and Angela jointly. At the time that Tony provided his affidavit on these issues (12 November 2024) Angela was 99 years old, suffering from dementia (as she still is), and was (and still is) unable to provide information concerning the value of assets or liabilities she may have held jointly with the deceased at the time of the deceased’s death.
Tony’s affidavit of 12 November 2024 gives the following summary of the deceased’s property at the time of his death:

Peter’s evidence was at times difficult to follow and confusing, and there were times when I considered that he gave non-responsive answers. Occasionally he would start to answer a question before the cross-examiner had finished asking it. Notwithstanding these observations, I was of the view that Peter was doing the best he could to answer questions, including in relation to his past and present financial circumstances.
In relation to finances, I accept Peter’s explanation that he did not have a good grasp of his financial circumstances as, until relatively recently, his wife had paid all of the bills and otherwise appeared to manage the family and company paperwork (TR P43).
When confronted in cross-examination about various payments he had made, Peter explained “I’ve got so much going on in my life at the moment” (TR P51 L25). When later asked questions about his sons, Peter appeared to emotionally break down. I offered him a short break, water and tissues, following which he said, “it’s just complicated” (TR P77).
In understanding the way in which Peter gave his evidence, I have had regard to the submissions made by counsel for Peter, being that “There is medical evidence to show that [he] had two suicide attempts last year, in March and in August. He’s also had hospital admissions” (TR P64 L39-42). I accept those submissions as going to Peter’s lacking a grasp of his own financial circumstances. I accept the unchallenged medical evidence that Peter has significant psychological stressors, has been going through a “very acrimonious separation” and has not seen one of his sons since August 2024. I accept that these various medical and psychological circumstances will have impacted upon Peter’s capacity to give a detailed account of his financial circumstances over the periods the subject of cross-examination.
This acceptance will mean that I do not consider that Peter has perpetrated deliberate falsehoods or deliberately withheld evidence (per Blendell at [28]).
I do, however, consider that the Court should treat with caution the estimates Peter provides when not supported by documents, given the lack of detail given by him as to his expenditure, as conceded by his counsel (TR P204 L48-50). In this, I accept there is some level of imprecision and/or potential inaccuracy in relation to his expenditure evidence. Accordingly, when some uncertainty arises, I do not propose to resolve the issue in Peter’s favour (per Blendell at [28]). More generally, however, I am satisfied that the Court has before it a “broad outline” of Peter’s financial position (per Blendell at [29]).

Detailed submissions were made orally by counsel for Peter and Angela during the reading of evidence. I had regard to those submissions, in addition to the written objections, when making my decision to admit that evidence. The oral submissions are recorded in the transcript at TR P13-16.
I understood Angela’s objections to be as follows:
Firstly, the exclusion DNA test is not relevant because it is of no forensic value.
Secondly, the exclusion DNA test should not be admitted because it is opinion evidence.
Thirdly, the exclusion DNA test should not be admitted because Angela was not given an opportunity to cross-examine Mr Prasad. I take this to be a submission that because Angela was not given an opportunity to cross-examine Mr Prasad, admitting his evidence would be unfairly prejudicial.
Fourthly, because Mr Prasad was not available for cross-examination about the exclusion DNA test, he is not a witness, meaning Peter “can’t get the report in without him being a witness” as one “can’t have it both ways.” I understand this to be a submission that, where Mr Prasad is not a witness, evidence of his opinion would be hearsay and should not be admissible to prove the existence of facts contained within his report.
Fifthly, the Y chromosome test does not meet the requirements of the Status of Children Act 1996 (NSW) (SC Act) (and its associated Status of Children Regulation 2019 (NSW)) nor the Family Law Act 1975 (Cth) (FLA).
I accepted Peter’s submission that the exclusion DNA test is relevant evidence. Firstly, it is relevant to Peter’s status as an eligible person, in that it could rationally affect the Court’s assessment of whether Peter is the deceased’s son. Secondly, it is relevant to whether Peter has shown sufficient cause for starting proceedings out of time pursuant to s 16 of the FPA. Thirdly, the evidence is relevant to whether Peter has shown special circumstances which warrant a notional estate order under s 23 of the FPA. Accordingly, I did not uphold the first objection of Angela.
Importantly, I accepted Peter’s submission that the mere fact the exclusion DNA test was taken is relevant to why he commenced proceedings when he did, because it shows he acted prudently, in that after he was told what he was by his mother, he obtained the exclusion DNA test, talked to Joe and then talked to a solicitor. Therefore, as Peter submitted, the exclusion DNA test is relevant for a non-hearsay and non-opinion purpose, and so the hearsay rule and opinion rule do not apply (Evidence Act 1995 (NSW) (Evidence Act) ss 60 and 77). Accordingly, I did not uphold the second and fourth objections of Angela.
As raised by Peter, r 31.23(3) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) requires that “unless the court otherwise orders, an expert’s report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it.” I accept that under r 31.18 of the UCPR, Mr Prasad’s report of the results of the exclusion DNA test is an “expert’s report”. I was satisfied it was appropriate to “otherwise order” that the report be admitted considering its relevance to several issues in dispute and the fact that the report was completed by an accredited laboratory.
I also accepted that Angela did not call Mr Prasad as a witness or require him for cross-examination. He was not on the defendant’s list of witnesses required for cross-examination per her submissions. I also accepted that Angela had sufficient notice of the exclusion DNA test and an opportunity to challenge the test and require Mr Prasad be made available for cross-examination, considering Peter included the exclusion DNA test in the affidavit served on 16 May 2024 and it was evidence in the interlocutory proceedings which resulted in Pronesti (No 1).
Further, senior counsel for Angela did not provide me with any potential challenges he would have made to the evidence if given the chance to cross-examine Mr Prasad, such as to make the admission of the evidence unfairly prejudicial. Moreover, given Kunc J ordered the Napoli brothers to undertake a parentage test, Angela had an opportunity to provide DNA evidence that may have responded to the evidence presented by Mr Prasad. I therefore did not consider it to be unfairly prejudicial to Angela to not have had the opportunity to cross-examine Mr Prasad’s evidence and rejected the third objection of Angela.
Although Angela did not suggest it, I was also not satisfied that there was sufficient danger that the exclusion DNA test evidence would be used in an unfairly prejudicial way so as to warrant a discretionary order to limit the use of the evidence under s 136 of the Evidence Act. In coming to this view, I have had regard to what was said by Stewart J in Karpik v Carnival plc [2022] FCA 1318 at [22]:

While G v H concerned a different statute, and the circumstances of that case were different to those here, I consider that this authority is the leading authority on the issue of inferences to be drawn from non-compliance with an order to undergo a parentage testing procedure. At worst, it is evidently highly persuasive and instructive on this issue, given the statutory text considered in G v H is materially the same as the statutory text being applied here (in particular, s 29 of the SC Act). I reach that conclusion keeping in mind the fact both parties made reference to this case in their submissions on Issue 1. I propose, however, to bear in mind the different circumstances in that case.
One material difference between G v H and this case is that in G v H*,* the outcome of any parentage testing procedure in that case would provide a high level of certainty as to whether G was the father of the child. The same is not the case here. As set out in Pronesti (No 1), the test proposed in the Motion and which the Napoli brothers were ordered to take (being by reference to the Y chromosome) could not definitively establish that the deceased was Peter’s father. The most a “positive” result could have established was that Peter, Tony and Joe shared a common paternal line. The ordered test would not distinguish brothers from paternal cousins and the like. However, a “negative” result would demonstrate that they did not share a common paternal line, which would necessarily exclude the deceased as Peter’s father, there being no evidence to suggest that the Napoli brothers were anything other than the deceased’s biological sons. It is important to remember that despite this limitation in what the ordered parentage testing procedure might have been able to show, the Court which decided Pronesti (No 1) still considered there was “real utility” in making the section 26 Order.
In relation to the application of s 29 of the SC Act and the drawing of inferences, Angela submitted that (DSE [5]):

Cathy was taken to the part of the excerpt which states, “Has been getting increasingly forgetful for the last 6-12 months”, and was asked whether she had observed something like that (noting Cathy’s sister, not Cathy herself, was at the appointment with Rosa). Cathy replied that “she forgot little things, yes”, and that “she was forgetting things, but that’s about it” (TR P116 L41-50).
Cathy was also asked about the part of the excerpt stating “Unable to recall recent conversations or when she went out for dinner and is increasingly repetitive”. Cathy’s evidence was that that was not something she saw of Rosa in January 2024 (TR P117 L1-11).
Cathy was asked about her recall of Rosa’s 2023 disclosure, and she said that she could not recall the exact words (TR P117-118).
Noting the terms of Rosa’s 2009 disclosure and Rosa’s 2023 disclosure, I accept that Rosa’s 2009 disclosure contained more, and some difference in, detail about the circumstances of the sexual activity, however I do not think that that detracts from the making of a finding in accordance with the principles set out in [88] above, that Rosa’s 2023 disclosure took place. Cathy herself noted, in cross-examination, that Rosa told her more in 2009 than was said in 2023 (TR P120 L1-3). That some detail may have been lost over the course of time is perhaps expected, and consistent with ordinary human experience.
In relation to the 2024 GP notes, and in particular, the note that Cathy’s sister had reported to the doctor that Rosa had been forgetful and that she had been unable to “recall recent conversations”, I am of the view that the terms of that entry do not on their face suggest that Rosa’s long term (as opposed to “recent”) memory was compromised, which I consider to be the relevant aspect of memory in relation to Rosa’s 2023 disclosure. No expert evidence to the contrary was relied on by Angela, contrary to what I consider to be a common sense understanding of the terms of the evidence itself.
In the course of cross-examination, senior counsel for the defendant took Cathy to some hospital notes from 14 April 2023, when Rosa was an inpatient in Nepean Hospital (TR P121 L21-49). Cathy was asked about conversations with hospital staff, and replied that all she could remember was that Rosa was not taking her medication properly (TR P122 L11-12).The proposition was put to Cathy that she could not remember what she told the hospital in April 2023, but that she could remember what her mother told her 17 years ago, to which Cathy responded (TR P122 L31-34):

The 2023 Nepean Hospital notes were later admitted and marked as Exhibit 16. The notes disclose that at that time Rosa was an inpatient, having been brought to the hospital by ambulance and admitted following a fall where she had sustained bilateral rib fractures. The notes record she was medicated variously with “Fentanyl”, “analgesia”, “Paracetamol”, “endone”, and “ropivacaine”. I consider that judicial notice will allow me to understand that these are various forms of pain medication of varying strength. However, without the benefit of expert evidence, I am not in a position to understand how these medications might have otherwise impacted upon her mental state.
To the extent that Rosa might have been in a poor medical and mental state during the course of that admission (which is not clear in any event), I do not consider, as submitted by Angela (DSE [17]-[18]), that Rosa’s mental state during this acute inpatient admission could assist me in understanding Rosa’s mental state on 7 September 2023, when Rosa’s 2023 disclosure was made. At this latter time, Rosa was at home and not acutely unwell and in pain (ie, without bilateral rib fractures).
For the reasons set out above, I reject the submission that “no weight could be placed on the hearsay allegations said to have been made by Rosa Pronesti in about 2009 and 2023” (DSE [19]). To the extent Angela submitted that Peter ought to have put on expert evidence as to Rosa’s mental state in 2023 (TR P197 L27, and see P198), I observe there was a fundamental consistency between Rosa’s disclosures across time that the deceased was Peter’s father, notwithstanding that Rosa had memory problems by 2023.
Having regard to all of the evidence going to the issue, I accept that Rosa’s 2023 disclosure took place as recounted by Peter, and find accordingly. That Peter was not challenged in relation to the disclosures is one reason I have accepted that the disclosure took place. However, I have also had regard to Cathy’s account of the disclosures, and her consistent and thoughtful account of the disclosures as elicited under cross-examination.
I also note that the terms of Rosa’s 2023 disclosure, at least in relation to the disclosure that sexual activity took place between Rosa and the deceased, and that Rosa believed that the deceased was Peter’s father, are consistent with Rosa’s 2009 disclosure, which I have already found took place. In giving weight to the similarity in accounts, I have had regard to Cathy’s evidence that she did not tell anyone (including Peter) about Rosa’s 2009 disclosure such that Peter’s account may be considered independent of Cathy’s evidence of the earlier disclosure.
In written submissions Angela says that the “circumstances of the sexual encounter are described differently on each occasion” (DSE [11]). I accept this submission broadly put. However, I consider the main difference in description is that Rosa’s 2009 disclosure has more detail. I do not accept the implicit suggestion in Angela’s submission that recollections of the sexual encounter are inconsistent in detail and consequently unreliable. I accept that due to the fallibility of memory, precise details are less likely to be remembered perfectly than overall events. I also point to the fact that these stories are recounted by Peter and Cathy, not Rosa directly, which may account for the variation in detail. I therefore do not consider that the different descriptions to be a factor which mitigates against the finding that the disclosure occurred.
In making this finding, I have also rejected Angela’s submission that it is “inherently improbable that an allegation regarding the plaintiff’s paternity was kept from him for over 50 years, including for 20 years after the deceased’s death in circumstances where the plaintiff stood to inherit property from the deceased” (DSE [20]). I am of the view that if sexual activity between Rosa and the deceased took place, whether it be consensual or not, it is understandable that this might have been a source of shame (as a matter of ordinary human experience), as stated by Rosa and observed by Cathy. This is particularly the case given the context of Rosa living in an Italian community; Rosa was married with children; and that the deceased was the husband of Rosa’s sister. That Rosa only told her son about this 50 years later is consistent with the sexual activity being a source of shame, and therefore I do not consider the late disclosure to be inherently improbable.

I am satisfied, in all of the circumstances, that Rosa’s 2003 hospital visit request took place as Peter says it did. That Rosa should make a request is consistent with her later disclosures in 2009 and 2023 (and as will be seen below, a previous 2003 disclosure), in that Rosa was requesting Peter to visit the person she believed to be Peter’s father. Peter’s evidence on this was entirely unchallenged.
Peter says that he respected his mother’s wishes and that he drove to Nepean Hospital with his then wife, Megan Ann Pronesti (now Croft), and visited the deceased, on or about 20 November 2003.
In relation to the hospital visit (the 2003 hospital visit) Peter stated that he and Megan arrived at the deceased’s room location, and that he recalled seeing Tony and other family members, whose names he could not recall. Peter said he went near the deceased’s bed and observed the deceased, however the deceased did not speak and appeared to be going in and out of consciousness.
Peter says he stayed in the deceased’s room for about 5 minutes and then moved to the corridor outside the room so that other family members could have their time at the deceased’s bedside.
Peter observed that there was a waiting room close to the deceased’s hospital room, and that there were some people who were visiting the deceased in the room. Peter recognised Tony as being in that room. Peter says he did not go into the waiting room and remained in the corridor.
In his affidavit evidence, Peter stated that at the time of the 2003 hospital visit, that he had no relationship with the deceased’s family. Peter’s explanation of the reason for this was that one of his sisters, Carmela, had married one of the deceased’s children, Joe. They, Joe and Carmela, were first cousins (the deceased being Carmela’s uncle). Peter said the marriage caused a divide in the family and, notwithstanding the death of his sister in 1977 or 1978, the family had remained divided.
Peter said that the 2003 hospital visit lasted around 20 minutes, and that it was the only time he visited the deceased at the hospital.
In his affidavit evidence, Tony stated that on 20 November 2003, when he and his wife Marina attended the hospital and went into the waiting room, Peter and Megan were already there, and that he heard the following conversation between Marina and Peter (the 2003 hospital conversation) (italics in original):

Tony’s evidence that he was “in shock” at what Peter had said (TR P197 L7-25) is in stark contrast to the evidence of Tony’s wife Marina (see below). However, as the extent of any contradiction only came out during Marina’s cross-examination, and Marina was cross-examined later in the day after Tony, I note that the cross-examiner was not able to examine Tony on these varying accounts.
Antonella Suteski is the daughter of the deceased’s now deceased daughter, Maria. Antonella says she visited the deceased at Nepean Hospital (with her mother). She stated she had seen Peter at the hospital on more than one occasion. She also stated that she recalled seeing Peter standing outside the deceased’s hospital room with other family members, and that she saw Peter have a conversation with her brother Bruno, and Joe. No detail of any conversations was given.
Antonella did not give evidence of the 2003 hospital conversation.
Peter says that he did not have a conversation with Marina or meet with other family members, and that he could not recall a person by the name of Antonella speaking to him.
Marina gave an account of the 2003 hospital visit which she confirmed took place on 20 November 2023. Marina said the deceased was not conscious and that he had not been conscious for days. Marina says she recalls that Peter turned up in the afternoon.
Marina also accepted that Rosa had visited the deceased in palliative care and would have likely told Peter that the deceased was unconscious at the point of his visit (TR P162 L3-13). Peter submitted that this account makes the 2003 hospital conversation inherently unlikely as there would have been “no point” in Peter attending the hospital to find out if he was the deceased’s son given the deceased was unresponsive and, on Marina’s evidence, Peter likely knew of this (PSC [49]).
When Peter and Megan arrived, Marina deposed that she and others were in the waiting room and the following occurred (italics in original):

I will refer to this alleged disclosure by Rosa to Maria as Rosa**’**s 2003 disclosure. In referring to it as Rosa’s 2003 disclosure, I recognise that whilst Maria’s communication of the disclosure is said to have taken place in 2003 (ie, “some months” before the 2003 hospital visit), it is not clear precisely when the actual disclosure to Maria itself took place. It may have taken place before 2003.
Importantly, Marina’s clear evidence was that Tony was present when Maria communicated to Rosa’s 2003 disclosure to Marina and that he had heard the allegations that the deceased was Peter’s biological father previously. However, that Tony was present at that time was only elicited after Tony’s cross-examination was completed, and so there was no cross-examination of Tony in relation to this evidence.
Having regard to the evidence cited above, and the broader circumstances, I accept that the 2003 hospital visit took place essentially in the terms described by Peter. As part of this, I accept Peter’s evidence that the 2003 hospital conversation did not happen.
In written submissions, Angela notes that Peter’s wife was present at the 2003 hospital visit, and that, “No affidavit of Megan Pronesti has been served in the proceedings” (DSE [13]). Whilst not explicitly put, to the extent this statement is an invitation to the Court to draw a Jones v Dunkel inference in relation to the absence of Megan giving evidence in these proceedings, I reject that submission.
In accordance with the legal principles set out above, and in view of the other evidence that Peter and Megan are currently in the midst of an “acrimonious” separation, I do not accept that Megan’s absence is “unexplained”, nor do I consider that it is expected or natural that Peter would call her, given those circumstances. Accordingly, I do not draw the inference that Megan’s evidence would not have assisted Peter’s case.
More generally, I do not accept the disputed evidence of Marina and Tony on the issue of the 2003 hospital conversation. Marina’s evidence of the conversation she said took place was technically corroborated by Tony. However, it was not corroborated by anyone else (including Antonella, who gave affidavit evidence in the proceedings), and it was denied by Peter. Notwithstanding the putative corroboration, the value I give to any corroboration by Tony is very low, including because Tony cannot be considered an “independent” corroborating witness. Tony is the husband of Marina, the son of the deceased, and is the tutor of the defendant in the proceedings.
Further, and as explained above, I was unimpressed by Tony as a witness for reasons including that he was argumentative and combative. He was not focused on giving candid answers to questions asked. Additionally, I consider it is likely that Tony’s evidence is unreliable more fundamentally, given his apparent lack of recall that he had already been told about Rosa’s 2003 disclosure before the 2003 hospital visit (as suggested by Marina’s evidence). If Tony could forget about such a significant issue, or at least get the timing of being told something so important so wrong, I consider I should approach the rest of his evidence with caution.
During Angela’s closing submissions, senior counsel for Angela and I had the following exchange on this issue (TR P197 L7-25):

Peter says that he did not immediately take any steps in relation to Rosa’s 2023 disclosure because he was about to have an operation and then was recovering from that operation.
About one month later, after recovering from the operation, Peter says he contacted a solicitor, David Wilson, and discussed the matter.
Peter said some time later that Mr Wilson recommended that he do a DNA test to confirm if what his mother had told him was correct. Peter arranged for himself and his brother Sam to have a test. The DNA test, being the exclusion DNA test, was conducted in December 2023. The report of the results of the exclusion DNA test concluded, “This result EXCLUDES shared paternal lineage for both Peter Pronesti and Sam Pronesti” (capitalisation in original).
Peter says that on about 2 April 2024, Mr Wilson told him that he had a potential conflict of interest, as he had been an attesting witness to a will of the deceased in 1988. Mr Wilson referred Peter to Mr Agostino, Peter’s solicitor in these proceedings.
On 3 April 2024, Peter instructed Mr Agostino to take over the matter and, following a number of conferences, the Summons commencing these proceedings was filed on 24 April 2024.
Peter was cross-examined on his contact with Mr Wilson and the steps Peter took which ultimately led to the filing of the Summons (TR P66-68). Peter’s evidence on this was unshaken in the course of that cross-examination, and I accept Peter’s account of the sequence of events from the time of engaging Mr Wilson. Angela did not make any oral closing submissions on this issue or otherwise submit the Court should not accept this evidence.
I address the significance of this evidence when I consider Issue 2, being whether Peter has shown “sufficient cause” for his application to have been made out of time.
In seeking to rebut the presumption that Guisseppe is Peter’s father, Peter relies on the exclusion DNA test results that show Sam, Peter’s brother, and Peter, do not share paternal lineage.
I discussed the admissibility of the exclusion DNA test results at [72]-[85] and found the evidence to be admissible. In anticipation of the potential for such an outcome, Angela in written submissions stated, regarding the weight that should be given to the exclusion DNA test results (DSE [35]):

I am satisfied, on the balance of probabilities, that Peter is a child of the deceased, and is thus an eligible person to make an application for a family provision order. In achieving this level of satisfaction, I have had regard to all of the evidence and circumstances of this case.
In coming to this conclusion, I have had regard to the legal principles set out by the High Court in G v H, together with fact finding and other legal principles set out above more generally, including the rules in Jones v Dunkel and Blatch v Archer.
The High Court in G v H (at 401) stated there were two types of inferences that may be drawn from a failure to take a test. One relates to the state of mind of the person who contravened the order. Here, Joe and Tony have chosen to take the risk that the Court will find Peter to be the child of the deceased, rather than submit to a test that will disclose that Peter may have a common paternal lineage to them (or not at all). Because of this, there will be no injustice if the Court finds that Peter is the child of the deceased, especially in circumstances where the DNA test ordered by Kunc J had the capacity to prove Peter was not.
The second type of inference available relates more directly to whether Peter is the child of the deceased. This is an inference that may be drawn contrary to the interests of the party who has it in their power to provide or give evidence on some issue but then declines to do so (per Jones v Dunkel and Blatch v Archer, G v H at 402). This failure may result in a more ready acceptance of the evidence of Peter or the more ready drawing of an inference that is open on the evidence.
I consider it was natural for Joe and Tony to have put on evidence as to the DNA test results; the DNA test results would have assisted the Court in its determination of the issue of Peter’s parentage; the absence of Joe giving evidence at all is unexplained; and the absence of the Napoli brothers completing the DNA test, as ordered, is unexplained. I have drawn the inference that the results of the ordered DNA test would not have assisted Angela’s case.
The Napoli brothers could have complied with the section 26 Order and if positive, it could have established that Peter and the Napoli brothers shared a common paternal line (however not distinguishing brothers from paternal cousins and the like). However, a negative result would demonstrate that they did not share a common paternal line, which would necessarily exclude the deceased as Peter’s father (Pronesti (No 1) at [11]). Such a result had the potential to bring the proceedings to an end (Pronesti (No 1) at [28]). In circumstances where Angela contends that Peter is not the child of the deceased, the potential for the Napoli brothers to have undertaken a DNA test to disprove Peter’s claim takes on particular significance. If Peter is not the child of the deceased, then the results of the DNA test ordered in the section 26 Order would have revealed this.
As the Napoli brothers have contravened the section 26 Order, paternity in these proceedings must be decided on the basis of the available evidence and by inference (G v H at 394).
In the absence of the evidence of the DNA test, which the Napoli brothers could have provided, the inference of paternity can be drawn with more confidence than it would otherwise have been (G v H at 391).
Specifically in relation to G v H, where no reasonable (or any) ground has been raised by the Napoli brothers as to why they did not undergo the DNA test, I consider it “just in the circumstances” to draw the inference that, in not complying with the section 26 Order, that it is more probable than not that the outcome of the DNA test would be “unfavourable” to them (G v H at 397, 402).
Even if the only inference I had drawn (inconsistent with G v H) was that the outcome of the DNA test “would not have assisted” Angela’s case (as opposed to the outcome being “unfavourable”), I would still have come to the same conclusion on the ultimate issue of paternity.
In relation to Joe more specifically, and having regard to the evidence that he said to Peter he was “99.9% sure” that the deceased was Peter’s father, I draw the inference that he “knows facts which make it likely that the test” would tend towards supporting a finding of paternity (G v H at 390-391). In drawing this inference, I am satisfied there is a link between Joe’s failure to take the test and a “consciousness of facts” in circumstances where Joe has failed to give any reason for not complying with the section 26 Order.
Angela submits that “It is not suggested that either [Tony] or [Joe] have any personal knowledge of the circumstances of the plaintiff’s birth, and there is no occasion to draw any inference against the defendant” (DSO [5.16]). As already stated, it is not Angela personally against whom any inferences are to be drawn, but rather, in relation to the persons the subject of the section 26 Order. Further, to suggest that the nature of the evidence that either Tony or Joe could have provided was any knowledge of the circumstances of Peter’s birth is misconceived.
In drawing the inferences I have, I consider them to be consistent with the evidence and the following findings I have made (per G v H at 401) that:
Rosa’s 2009 disclosure was made to Cathy.
Rosa’s 2023 disclosure was made to Peter, with Cathy present.
Rosa told Peter of the deceased’s 5 acres promise (although I have not been satisfied to the requisite standard that the deceased made the promise).
Rosa’s 2003 hospital visit request was made to Peter.
The 2003 hospital visit took place in the terms set out by Peter, and the 2003 hospital conversation did not happen.
Peter and his brother Sam do not share the same paternal lineage (per the result of the exclusion DNA test).
Joe made a statement to Peter that he was 99.9% sure that Peter was the child of the deceased, notwithstanding the Court does not know the basis on which Joe based his “99.9% sure” certainty.
In making the factual findings I have, I have been satisfied that on at least three occasions, over at least two decades, Rosa told people (Maria in 2003 or before, Cathy in 2009, and Peter in 2023) that Peter was the child of the deceased.
I have also been satisfied that Guisseppe was not Peter’s biological father, given the exclusion DNA test results.
Given this factual matrix, in all of the circumstances, I am satisfied that Peter is the child of the deceased. In coming to this conclusion, I consider that the most inherently likely reason that Rosa told people Peter was the child of the deceased was because she believed that Peter was the child of the deceased. And I consider that the most inherently likely reason that Rosa believed that Peter was the child of the deceased was because Peter was in fact the child of the deceased. I see no other more likely reason why she would have made the disclosures she did if this was not the case, and I can see no reason that she was likely to be mistaken in her belief. The circumstances of the case include that Rosa and the deceased and their families knew each other at the relevant time and were culturally connected. Further, no other potential father has been identified by either party.
When I say that no party has identified another potential father, I have had regard to the following submissions made by Angela in closing (TR P195 L44-P196 L9):

On this issue, Peter acknowledged that during the prescribed period after the deceased died, Angela was the deceased’s widow and had a competing claim to his estate and notional estate. However, Peter submits that Angela’s competing claim would not have conclusively defeated Peter’s claim. It was submitted that even when the deceased died there were significant, and available, jointly owned assets which could be designated notional estate without significantly compromising Angela’s position (PSC [86]).
It was noted that while Angela lived on the Caddens Road Property, that it was not one parcel of land, but rather, that it comprised four lots, which Tony acknowledged could be separately developed and sold. In relation to the values, Tony gave evidence that the Caddens Road Property was valued at $3 million at November 2003, in which case the value of the deceased’s notional half would then have been $1.5 million (PSC [87]).
The Castle Road Property was a separate parcel of land: none of the family lived on it, it was not a part of the farm, and it was rented out from 1995. The November 2003 valuation of the property was $1.25 million, so the deceased’s 20% share would mean that $250,000 was potentially available for designation as notional estate. It was submitted that, had the application been made within time, the Castle Road Property could have been sold or refinanced without jeopardising or compromising Angela’s financial or personal circumstances (PSC [88]).
Peter in this context also relies on a conversation where Rosa said that the deceased had referred to “five acres”, and where Tony, in cross-examination, acknowledged that the Castle Road Property was a five-acre block (TR P187 L47-49).
Tony put into evidence valuation reports which contained estimates for the value of the Properties as at 2003. Those valuations have been used by both parties (PSC [87]-[88], DSO [5.31]).
More generally, Peter submits there may have been other assets that could have been designated notional estate, such as the deceased’s half share of a joint bank account, which may have been available (PSC [89]).

I accept the relevance of Durham as cited by both Peter and Angela, in that the Court should consider what would have happened if Peter had proceeded to apply for provision in time.
I note that the agreed estimate of the value of the deceased’s interest in the Properties in 2003 is $1.5 million for the Caddens Road Property and $250,000 for the Castle Road Property. The total estimated value of the deceased’s interest in the Properties as at 2003 is therefore $1.75 million.
As I read the valuation evidence before the Court, the estimate values of the deceased’s interest in the Properties of $1.5 million and $250,000 (stemming from estimates as to the overall value of the Properties) signify the real figure someone in 2003 would actually have paid for the Properties (or the deceased’s interest in them). Given the approach taken by the valuer was to use sales of comparable properties around 2003 to then value the Properties, the figure reached by that measure is necessarily a figure which adjusts for inflation or other market factors that might have changed between 2003 and now. However, there is no evidence as to what I will describe as the “relative value” of $1.75 million in 2003 would be. That is, it is not clear how an estate of $1.75 million would notionally rank as compared to other estates in 2003. The parties did not even say what $1.75 million in 2003 would be worth today, adjusted for inflation alone, to provide a rough yardstick.
I could simply take the figure of $1.75 million in 2003 and assess its relative value according to the deceased estates of today, without even adjusting for inflation. I do not consider that approach to be the correct one, as that would be comparing apples (an inflation unadjusted sum of money from 2003) with oranges (estates whose values are inherently affected by inflation, and perhaps other market forces). But even if I had taken that approach, I am of the view that, even by today’s standards, an estate of $1.75 million may be understood as being a “moderate” estate. Further, I accept the submission of Peter that there was likely to have been other actual estate in 2003 to add to that figure.
I have imposed the label of “moderate” on the size of the estate, noting that Meek J in Tarbes referred to an estate of $2 to $5 million being “a relatively large estate”, “a reasonably large estate” or “a moderately large estate” (Tarbes v Taleb [2023] NSWSC 565 (Tarbes) at [10]). Certainly, I do not consider it a small estate.
However, I consider that the estimated value of the (notional) estate in 2003 of $1.75 million would be best characterised as a “large” estate in 2003. I have found examples of what judges considered large estates shortly before or after 2003, given the judges deciding those cases would have had a more concrete impression than I would of the relative values of estates at the time. In Hornby v Cavenagh [2001] NSWSC 689 at [42], an estate with a present value of just under $2,000,000 was described as a “large estate” by Acting Master Berecry. In Novak-Niemela v Perpetual Trustee Co Ltd [2002] NSWSC 251, Master Macready described an estate of $1.7 million as a “large estate”. In Stansfield v National Australia Trustees Ltd [2004] NSWSC 1107 at [41], Master Macready described an estate of $1.8 million as “somewhat larger than some of the small estates”. In 2005, in Morton v Little [2005] NSWSC 36, an estate of approximately $1.1 million was treated by Master Macready as a “large estate” (see at [39]). While these are not necessarily determinative, it does give the Court a sense that in 2003, the deceased’s (notional) estate would have been seen as one of relatively high value.
I also note that even in recent years, Hallen J described as “reasonably large” estates whose value was around or not much higher than a nominal value of $1.75 million (see, eg, Jodell v Woods [2017] NSWSC 143 at [27]; Cooper v Cooper [2018] NSWSC 851 at [35]; Blendell v Byrne; Estate of Noeline Joan Blendell [2019] NSWSC 583 at [136]; Brewer v Ney [2023] NSWSC 526 at [38]). Considering that the real value of figures around $1.75 million in the years 2017-2023 would be less than the real value of similar figures in 2003, this again gives me comfort that in 2003, the deceased’s estate would be seen as a relatively large one.
With consideration to what would have happened if Peter had applied in time, on the issue of the strength of Peter’s case, for the reasons I elaborate on in relation to Issues 3 and 4, I am of the view that Peter has a strong claim for a family provision order.
I accept the submission of Angela in relation to her circumstances as widow and that Angela has a strong competing claim. I assume, against Peter, that if Peter had made a claim against the estate in 2003, Angela’s needs and broader circumstances would have been given great weight.
In closing submissions, Angela criticises Peter for not putting on evidence of his financial circumstances in 2003, being around the period in which any application within time would have been made (TR P192 L11-13). I accept this submission. I propose to consequently treat the circumstances of Peter at that time as being of an independent adult. However, it is in this context that the issue of the potential value of the (notional) estate in 2003 becomes more relevant.
In circumstances where Peter did not receive anything from the estate of the deceased, nor at any time throughout his life, I am of the view that there would still have been sufficient property within the notional estate of the deceased to ensure that Angela remained well provided for (perhaps in addition to further actual estate), but also for some provision to be made to Peter. In contrast to Durham at [38], the deceased’s notional estate was large and consisted of two properties such that Angela was not dependent on the whole of the estate for her accommodation and financial support.
I similarly am satisfied that the deceased’s notional estate was sufficiently large such that there would be sufficient property for Angela’s children and their expectations regarding inheritance.
To the extent that in 2003 Peter may be considered an independent adult, running a business, and in a stable marriage (as submitted by Angela), I reject the submission that “adult children do not get unencumbered realty” and that they “certainly don’t get it when they’ve done nothing for the deceased”. I do not consider that those factors militate against the making of a family provision order in a notional estate of the size of the deceased’s. In this, given that the size of the notional estate even in 2003 is likely to have been large (if not large, then in the upper end of moderate, and certainly not small), I consider that Peter would have been entitled to ask the Court to make provision on the basis of advancement, if not for more basic needs as well. For instance, Peter’s claim for provision for a buffer for contingencies would likely have also had significant merit in 2003 (having regard to the relevant legal principles summarised at [309]-[310] below; see also my consideration of the issue at [435]-[437] below). I therefore consider Peter would still have had a reasonable claim had it been made in 2003.
I accept Peter’s “prospects” may now be considered to have “improved” given his own circumstances have changed for the worse (and his needs have increased), the size of the estate or notional estate is likely to have increased, and Angela’s competing claim has decreased force. I accept I should have regard to the fact Peter’s prospects of success have improved since 2003. However, I weigh that matter against my view that even at that earlier point, accepting the submissions made on this issue by Peter, that if Peter had made an application within time that that application would still have had reasonable prospects of success.
Additionally, I do not consider that there is any practical prejudice to the estate or Angela in the making of this application now, as opposed to making it in 2003. In addressing the issue, Peter made numerous submissions (PSC [55]). However, the central issue is that Angela has considerable means of her own (ie, some $28 million). In any event, the provision sought by Peter is only 5% of the notional estate of the deceased, which is not likely to have any practical significance to Angela. With this I agree.
Having regard to all of the circumstances, including Peter showing sufficient cause as to why he did not make an application within the prescribed period, I propose to make an order that the time for the making of this application be extended up to and including the date of the filing of the Summons.

Having established that Peter is an eligible person to make an application for a family provision order and that the application may be made outside the prescribed period, the Court must now consider whether the provision made in favour of Peter by the deceased was inadequate and, if yes, what order, if any, ought be made out of the estate or notional estate of the deceased (per s 9(2) of the FPA).
Given there is likely to be an overlap in the facts and circumstances to be considered by the Court in determining whether there has been inadequate provision and what order (if any) ought to be made where inadequate provision has been established (see [28] above), I will consider the facts and circumstances relevant to Issues 3 and 4 together, to avoid repetition. I will, however, go on to consider Issue 3 first, and then Issue 4 second, in accordance with the approach required by authority and the terms of the statute itself.
As already noted, s 9(2) of the FPA requires consideration of what provision (if any) ought to be made out of the estate or notional estate of a deceased person. The parties made submissions on the issue of notional estate both in writing and orally. For instance, in PSC, Peter first referred to the agreed value of the notional estate as being approximately $28 million (PSC [5]), and used this figure to make submissions, such as that in cases of a large notional estate the Court is not limited to needs and may take into account broader concepts of advancement and what is proper in the circumstances of the size of the estate (PSC [42]). The defendant also accepted that the figure of $28 million would “be hopefully more than sufficient … to give whatever provision the plaintiff might get” (TR P5 L15-18). In this, the Court accepts the submissions of the parties that some $28 million is potentially available for designation as notional estate. The Court’s consideration of this issue, and the notional estate issue more broadly, is set out below at Issue 5.

Peter was born in November 1970 and was thus aged 55 at the time of the hearing.
Peter was previously married. He separated from his wife, Megan, on 5 March 2024. Peter and Megan divorced on or about 1 October 2025. Property settlement proceedings have not yet commenced but the parties have undertaken financial disclosure. Peter says he and Megan have lived separately since the separation date.
Peter and Megan have three sons. The two older sons are aged about 23 and 20. The younger son is a minor. As at mid-2024, the two older sons were living with Peter and the younger son was living with Megan. By the time of the hearing however, Peter gave evidence that the only people living in the house were himself and a friend who had been living there for a few months (TR P88 L49-50, P89 14-15). Peter said that the friend did not pay rent or otherwise assist with bills, and the like, and that he was “supposed to do some stuff around the place” (but didn’t) (TR P89 L17-27). Peter further explained the friend bought himself food and assisted with utilities “if they’re big” (TR P94 L1-5).
When called upon to answer questions in relation to his sons, and who they lived with, Peter became very distressed (TR P77 L13-32).
Looking forward, Peter says that any family law settlement with Megan will affect his assets in the future. Peter said that Megan had limited means, and that she was living with her mother. The marital home is said to be a house that was registered in his name, which I have inferred is the property located in Londonderry (Londonderry property) where he currently lives. Peter says it is likely the house will be sold and the proceeds shared between himself and Megan. Peter’s evidence on this was not challenged in cross-examination.
Peter gives evidence that the separation from Megan has been very acrimonious, and that Megan has the benefit of an Apprehended Domestic Violence Order, given by Peter with his consent and without admissions to avoid a contested hearing.

In his affidavit evidence, Peter set out the following assets, as updated on 12 February 2026:
The Londonderry property, which Peter is the registered proprietor of, with an estimated value of $2.8 to $3.2 million, subject to home loans which have approximately $86,598.87 still owing.
Cash in three bank accounts in the following sums: $300.04, $3,953.97, $1,565.73.
Two motor vehicles valued at about $2,000 and $3,000.
Numerous unregistered vehicles in disrepair valued at about $50,000.
A jet ski valued at about $4,000.
A superannuation fund, the balance of which is $341.87.
In relation to the value of the Londonderry property, there was one market appraisal relied on by Peter to support the estimate given. Peter was cross-examined in relation to that market appraisal and in relation to the value of the property more generally (TR P38-51). Ultimately, no submissions were made by Angela in closing on the issue. Accordingly, I propose to accept the market appraisal as the best available estimate of the value of the Londonderry property.
In relation to monthly expenditure, in his 16 May 2024 affidavit, Peter set out various sums said to be of “my (or my family’s) expenditure”. This monthly expenditure included loan repayments to “CBA” ($2,800), house insurance ($650), council rates ($700), water rates ($150), electricity ($500), groceries ($2000), and repairs & maintenance ($800). These monthly expenditure figures total $7,600. Some of these expenses may well have been the same at the time of the hearing (or perhaps have increased), such as council rates. However, other expenditures, in particular groceries, are likely to have reduced given Peter’s sons were no longer living with him and, on his own oral evidence, the friend staying with Peter bought his own food. If the estimate for groceries is reduced to one third ($666) of the estimated $2000 per month (accounting for the fact the sum at the time of the hearing only had to cover Peter, as opposed to Peter and two of his sons), then the total for the month is $6,266 ($75,192 annually). Some of these issues were explored with Peter in cross-examination (TR P94-96, P95 L1-3), following which Angela made the following submissions in closing (TR P192 L13-34):

Of the significance of there being a large notional estate, Peter submitted that the size of the estate will have particular significance when the Court considers what is “proper” for the purposes of s 9(2) of the FPA. Further, it was submitted that where there is a larger estate or notional estate, that the Court will take a broader view as to “advancement” and provision is not limited to needs and necessities. In support of this submission, Peter cited Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114]. Peter also noted that there are no competing claims (PSC [83]).
Peter further submitted that in large estates a “more extravagant allowance for contingencies” could be made, citing Mayfield v Lloyd-Williams [2004] NSWSC 419 at [114].
On the issue of “bare paternity”, Peter acknowledges that the deceased never acknowledged Peter as his son during his lifetime, and that the deceased and Peter never lived together. However, Peter submits that even if the relationship between himself and the deceased is not more than bare paternity, that fact does not preclude a claim. In making this submission Peter cited learned authority in keeping with the legal principles set out above (PSC [80]), including that as the deceased was responsible for bringing Peter into the world, a moral duty to Peter had arisen (PSC [81]-[82]).
Peter broadly advanced three justifications of the $1.4 million sought for provision. Firstly, Peter says he would like to retain the Londonderry property, as it is suitable for his business and storing the unregistered cars for parts, or purchase a comparable property with space and a large shed (or space and cash to build a large shed) (PSC [123]). It was noted that the Londonderry property, where Peter currently lives, includes a large shed and many cars, and is where he operates his business.
In oral submissions made on the first day of the hearing, and before Angela’s cross-examination of Peter was completed, Peter explicitly clarified the basis of his claim for provision of $1.4 million with respect to the house in the following terms (TR P53 L31-42):

Peter submits his financial need is in part due to his significant mental health issues which have restricted his ability to work (PSC [66]). Even if Peter’s mental health improves, it is submitted that there is limited work available (PSC [67]).
Peter was not challenged or otherwise questioned on the nature or extent of his mental health conditions, or the extent to which his mental health does, or may in the future, impact upon his earning capacity.
Peter was cross-examined on his credit card expenditure, particularly on go karting and car racing related travel. Of this, Peter submits that the Court should note that some of the expenditure that Peter was examined about were incurred in 2022, when he and the family were still earning a strong income. This time was before his income gradually declined in the context of his separation and declining mental health (PSC [69]).
Notably, some of the expenditure was reported by Peter related to expenditure by of one of his sons, who was around 18 years of age in 2024. In this, Peter submits it was reasonable for him to be paying his son’s expenses (PSC [70]).
Considerable time was spent in cross-examination with Peter on the issue of Peter attending go karting events with his son and providing his services for nominal rates or contra deals to assist his son and to provide go-karting opportunities for his younger son (or to pay off debts: TR P62 L35-40). Peter submitted that this conduct had to be understood in the context of Peter trying to build his relationship with his sons, and with the medical evidence indicating that Peter was concerned about becoming estranged from his family (PSC [71]).
Peter was also cross-examined on his travel outside of Australia. Peter explained that this travel, accommodation and other expenses were paid for, and that he only received a nominal fee. Peter submitted that he had explained this was to “get [him] out of the area” (TR P63 L17) or “get away from Australia” (TR P78 L24), and it was submitted this travel was reasonable given Peter’s mental health (PSC [72]).
Thirdly, after noting that Peter has limited savings or superannuation, he states at PSC [126] that “in a large estate, a court is not limited to needs, and a broader concept of ‘advancement’ and more extreme contingencies can be taken into account”. I infer that Peter seeks an order that will provide a “buffer against contingencies”, in the same way that savings and superannuation might.

I will firstly address the first stage of decision making referred to in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40. Having regard to all of the circumstances before the Court, and the applicable legal principles, I am satisfied that the provision made by the deceased either in his lifetime or in his will, being nil, was inadequate for Peter’s proper maintenance, education and advancement in life.
In making an assessment of whether, in all the circumstances, the provision made was inadequate for the proper level of maintenance, education, or advancement in Peter’s life, the Court must have regard to, amongst other things, the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his bounty.
I accept the deceased was not obliged to treat all of his children equally. However, I am of the view that making no provision for Peter meant the deceased did not discharge his moral duty to make some provision for Peter, a duty I accept exists notwithstanding the relationship between the deceased and Peter was one of “bare paternity”, and in circumstances where the extent of the deceased’s (notional) estate could comfortably provide for Peter.
It may be accepted that Angela is correct to say that what was said in Nicholls was obiter: the Court of Appeal determined that the appellant in that case had established more than “the mere fact of paternity” in justifying his claim to family provision and remarked that the appellant’s moral claim depended on paternity “and on some additional factors”. However, to my mind that does not deprive what was said in Nicholls about bare paternity of its persuasive force. I note my quotation of what Hallen J said in Harris above at [307]: the fundamental principles of bare paternity articulated in Nicholls are persuasive and have been widely adopted. In circumstances where a parent is responsible for bringing a child into the world, a moral duty to that child attaches. I do not consider that any subsequent conduct of the parent in denying paternity in any way absolves that parent of moral duty or responsibility. In fact, in some circumstances it may be that, as a function of denying responsibility, a child does not have that parent’s emotional and financial support as they grew up, and so the parent’s moral duty at a later point in time may be increased. This may be the case even where there is a non-biological parent available. These comments are made by way of first principles and common human understanding, and while they are consistent with what was said in Nicholls, they stand independently.
Notwithstanding that a moral duty arises for a paren t in relation to a child from the bare fact of paternity, in deciding whether provision is inadequate, the Court should also consider the totality of the relationship between Peter and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his bounty. I am of the view that these considerations weigh against a finding that inadequate provision has been made. Peter (through no fault of his own) did not have a child-parent relationship with the deceased and accordingly did also not have the opportunity to contribute to the deceased’s finances or welfare. The deceased was sustained throughout his life by his wife, Angela, and his acknowledged children.
In comparison, I am of the view that consideration of the size and nature of the notional estate weighs in favour of finding that inadequate provision has been made. Angela has conceded that, should the Court be minded to make a notional estate order, some $28 million is available for this purpose out of “the deceased’s cash” (see [18]-[22] above). I am of the view that, on any view, the size of the (notional) estate is large, so it is of a sufficient size that it can accommodate due acknowledgement of competing claims, such as consideration of Peter’s maintenance, education and advancement in life.
In coming to my conclusion in relation to inadequacy, I have also had regard to the competing claim of Angela, notwithstanding that Angela herself has not put her circumstances in issue. I consider that Angela is entitled to look to this Court to not disregard the deceased’s freedom of testamentary disposition, and disposition to her as beneficiary, regardless of her financial position or need. However, I am satisfied that any provision for Peter will not have any practical impact upon Angela, particularly considering the large notional estate.
I do bear in mind that it does not automatically or necessarily follow that provision was inadequate merely because no provision was made to Peter.
Having regard to Peter’s financial circumstances, I accept that whilst he currently has around $3 million in equity in the Londonderry property, he has little else by way of assets. The evidence before the Court shows Peter has low levels of cash and money in his superannuation fund. His other assets include two motor vehicles of low value, as well as numerous unregistered vehicles on his property that are in a state of disrepair.
In all of this, Peter will at some point engage in a property settlement with Megan, where the only evidence before the Court is that Megan herself has limited means. I consider it safe to infer that any property settlement will result in a diminishment of Peter’s equity in the Londonderry property, given that property is his major asset. Peter submitted that it is likely that his assets will need to be sold and shared with Megan, which I accept.
I am not critical of Peter (or Megan) that the property settlement has not yet occurred, given that the separation only occurred in 2024, and divorce in 2025, combined with the ongoing concerns of Peter’s mental health issues and hospital admissions in the course of 2024.
Given the significance and seriousness of Peter’s mental health issues (which have not been challenged), I accept that these issues will have had an impact upon his capacity to work and earn money, and will continue to do so at least in the near future. I have no expert evidence on how Peter’s mental health challenges would impact his capacity to work. However, I do not think it is necessary to have expert evidence to accept that the various hospitalisations for suicide attempts, and the diagnosis of depression, apart from anything else, may well have interfered with Peter’s capacity to hold down a job and earn a living for those relevant periods of time. That conclusion seems to be a commonsense conclusion, though I do consider the fact I do not have expert evidence means I do not know what precisely the impact of his hospitalisations and diagnosis might have had or will have on Peter’s capacity to earn a living.
I note that the work contract Peter previously had with Cooper’s Smash Repairs was terminated in 2024.
I have already addressed the issue of Peter’s expenditure, and the significance of the absence of documents explaining expenditure in 2026, as updated from 2024, as raised by Angela. However, I am still satisfied that I have a broad outline of Peter’s financial situation such that I can be satisfied he has been left without adequate provision. I note I am entitled not resolve issues in favour of Peter where there has been uncertainty left by imprecise or inaccurate evidence presented to the Court (per Blendell at [28]-[29]). Accordingly, I propose to not resolve issues in favour of Peter in relation to Peter’s lack of updating evidence regarding his expenditure. However, no matter which way one looks at the evidence before the Court on Peter’s expenditure, even as it stood in 2024, noting that more recent spending referable to mental health is not included in that summary, it appears Peter’s expenditure, as extrapolated from 2024, still exceeds his income, which in the last tax year amounted to $22,255. I am of the view that, even without updating expenditure details, the Court can still assume that Peter will still be paying for house insurance, council rates, water rates, electricity, repairs and maintenance of a property with acreage, as well as for his own food. Excluding home loan repayments and food, the annual expenditure referable to these bare necessities (using the figures provided in 2024, assuming against Peter these have not become more expensive) is $11,600. If one assumes Peter’s monthly grocery expenditure reduced by a flat two-thirds (as two members of his previously three-member household left) then, excluding home loan repayments, Peter’s expenditure amounts to $33,600 annually (a third of Peter’s grocery expenditure would be $666: see [331] above – I am again assuming against Peter that he and his two sons were equally causative of the grocery costs set out in 2024). No matter which way Peter’s financial circumstances are approached, unfavourably or otherwise to Peter, his financial circumstances are parlous.
In all of this, I am of the view that Peter’s current and future financial circumstances weigh in the direction of a Court finding that inadequate provision had been made.
Weighing these various matters, I am of the view that overall, no provision, as was made by the deceased, was inadequate for Peter’s proper maintenance, education and advancement in life.
Having decided that making no provision is inadequate for the proper maintenance, education and advancement in life of Peter, I must then decide what provision, if any, ought to be made.

When determining the second stage, I bear in mind that this will involve similar considerations to those considered in the first stage (Phillip Seeto at [120]) and will include the Re Fulop factors.
I have decided an order for provision ought to be made, for reasons similar to why I was satisfied that there was inadequate provision, as explained in more detail below. I will elaborate on the considerations set out above to help quantify what order for provision ought be made.
As the notional estate is a large one, I accept the submission of Peter that the Court should take a broader view as to “advancement” in large estate cases, and provision for Peter need not be limited to the basic necessities of life. I also accept that a “more extravagant allowance for contingencies” can be made.
I am satisfied that the current financial circumstances of Peter support the making of an order. Those financial circumstances are discussed above. However, as will be recalled, Peter sought an order of $1.4 million in provision for himself. Counsel for Angela submitted this figure “might as well be plucked out of the air” (TR P202 L8). There is some force in Angela’s submission.
Peter firstly submitted that $1.4 million was an appropriate amount of provision as it would allow Peter to retain the Londonderry property.
In relation to the Londonderry property, whilst Peter lives on a property in which he has approximately $3 million in equity, I am satisfied that I should proceed on the basis that Peter’s equity will be reduced following a property settlement with Megan. I accept the submissions of Peter, noting there are no submissions against them by Angela, that the Court ought to take into account that:
Peter and his former wife have not yet had a property settlement;
Megan has limited assets and lives with her mother;
Peter and Megan have a minor child who lives with Megan and has ADHD; and
it is likely the Londonderry property will have to be sold and assets shared.

Peter submits that the nature of his current property is such that he can also conduct a business from that property, being the car related business, as there is a shed in which he can work and space for his truck and deregistered cars to be stored for him to use for parts. As part of this, I recognise that the income stream received from this work is currently low.
In his updating affidavit dated 12 February 2026, Peter tells the Court that “it is likely that [the Londonderry property] will be sold and the proceeds shared between Megan and myself”. Given that Peter is facing an impending property settlement, and that Megan’s own means are limited, I have already accepted that in all likelihood the Londonderry property will have to be sold and the proceeds shared with Megan, emphasising that how those proceeds might be split is not knowable.
In the event that Peter sells the property, if Peter were to purchase a new property suitable only for living, he would lose the capacity to earn money from the car related activities insofar as he has relied on his own shed and property (or “acreage”) in the past. In stating this, I recognise that Peter’s capacity to earn through what I have referred to as “car related activities” is currently limited. That capacity may increase in the future with some improvement in Peter’s mental health and opportunities. I thus accept that if Peter does purchase a new property, he may well choose to find a property that will allow him to undertake his car related activities, at the current low level, and potentially more in the future (PSC [123]).
Noting that I may take a broader view on advancement in the context of a large notional estate, I am of the view that Peter having a property with “acreage”, that is, which would be sufficient to enable Peter to carry out work on his property and potentially return to being self-sufficient financially, would be important for his advancement in life.
However, as I have not accepted that “at least half” of Peter’s equity in the Londonderry property will go to Megan, I do not accept that $1.4 million would be appropriate provision for Peter to retain his home.
Furthermore, I do not propose to proceed on the basis that the Court ought to consider making provision for Peter that would necessarily allow him to retain his home. Peter did not persuade me that this property was required for Peter’s needs. Peter submitted that “his property” is “suitable for his business and storing unregistered cars for parts”, but also that Peter could “purchase a comparable property with space and a large shed (or space and cash to build a large shed)” (PWS [123]). Any amount retained by Peter following the sale of the Londonderry property and the distribution of proceeds to Megan, may well go towards him purchasing another home, potentially unencumbered. I do accept, however, that any alternative home or property Peter may purchase might properly be expected to include a home in which to live, together with enough land (or acreage) to house a work shed, truck and deregistered cars.
In stating this, I also bear in mind I have not been provided with any estimates of values of alternative homes or properties for Peter. To the extent the Court has not been provided with evidence by Peter that would have assisted the Court in its decision making, the result for Peter will be that the Court will take a cautious approach to provision. The closest submission from Peter about the necessary attributes of any alternative property is that any alternative property should be “comparable” to the Londonderry property. But what a comparable property might cost is not disclosed in the evidence. The only yardstick in the evidence is the value of the Londonderry property itself, which is approximately $3,000,000. On the one hand, there might be properties which meet Peter’s needs by way of providing a house and acreage to allow for car related activities but are less expensive than $3,000,000. For example, it might be the case a property smaller than the Londonderry property may be enough. It also might be the case that a similarly sized and located property might be worth less than the Londonderry property, though that possibility is less likely. I am not prepared to proceed on the basis that a comparable property would be worth more than the Londonderry property, absent an evidentiary basis to do so.
That being said, Angela did not submit that a comparable property would be worth significantly less than $3,000,000. She did not put on competing valuations of the Londonderry property.
In my discretion, I am of the view that it would be appropriate to make an order for provision which would, following any sale and distribution to Megan, be sufficient to enable the purchase a home with some acreage, potentially unencumbered. Looking at Peter’s current circumstances, I accept that he has fallen on hard times, and note the following principle from Limberger as set out by Hallen J as quoted by me at [306] above:

Having regard to all of the circumstances at the time of making the order, in my discretion I have decided that, as a part of any order I propose to make, I will allow $700,000 towards the purchase of a home. Depending on the amount paid for that home and the amount Peter receives in any property settlement, Peter may well be able to obtain it unencumbered. This amount also makes some provision for transfer duty and conveyancing costs that are payable in respect of the purchase of a new property (adopting the approach of Hmelnitsky J in *El-*Bayeh *v El-*Bayeh [2025] NSWSC 1177 at [85], where his Honour was also making provision referable to the purchase of a property).
This is considerably less than what Peter claimed. However, I am of the view that given the uncertainty in the evidence that currently exists, albeit some of that uncertainty relates to matters which are out of Peter’s control (for example, the property settlement proceedings which have not commenced), and some of it stems from Peter’s own case, this is the appropriate amount to allow in relation to the issue of accommodation. In my view, this amount represents what can fairly be reached on the evidence before me. Peter has satisfied the Court that:
the Londonderry property will most likely need to be sold, and not all the proceeds of sale will end up in his hands;
he will need to get a new property for himself;
he will need some financial assistance in obtaining a new property;
any new property should be “comparable” to the Londonderry property in having space for living and acreage for working.
However, given the uncertainty as to other matters, even operating from a yardstick of $3,000,000 to guide what a “comparable” property might cost to purchase, it is difficult to justify a further sum referable to the purchase of a new property. The sum I consider appropriate, referable to a new house, to me still represents a substantial contribution out of the (notional) estate of the deceased, which I accept is proper to be made, having regard to the uncertainties in the evidence.
Whilst Angela submitted that “adult children do not get unencumbered realty”, particularly not “when they’ve done nothing for the deceased”, I am of the view that this is an incorrect characterisation of Peter’s position. Peter receiving money towards purchasing a home, potentially unencumbered, must be considered in the context of where Peter has fallen on hard times and is financially and mentally struggling, and in the further context of a large notional estate.

Where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute.
On the submission that Peter requires financial assistance for his maintenance and advancement in life, I accept Angela’s submission that Peter has not provided as much disclosure of his financial circumstances as is typically provided in family provision proceedings. Peter estimated his family’s monthly expenditure as $7,600 or $91,200 annually. However, this estimate, provided in 2024, does not account for Peter’s changing family arrangements, nor does it appear to list all of his expenses (for instance, medical expenses were not included, which Peter elsewhere stated cost him $266 monthly, nor were car insurance or registration fees itemised).
I also accept that Peter has provided a car for his son, as well as other support. I accept the submission of Angela that this may suggest Peter is not necessarily impecunious, and Peter has not provided sufficient information to evaluate how he is spending his money. Notwithstanding this, I also accept Peter’s submission that this conduct had to be understood in the context of Peter trying to build his relationship with his sons, with the medical evidence indicating that Peter was concerned about becoming estranged from his family (PSC [71]).
Whilst I accept that there are deficiencies in the financial disclosures that have been made, I am of the view that the evidence before me is sufficient to conclude that, in the exercise of my discretion, an order should be made for provision for Peter.
If a family provision claimant fails to sufficiently disclose their expenditure, that omission may lead the Court to reject a family provision claim on the basis that the Court has inadequate information as to the claimant’s circumstances and so cannot be satisfied that inadequate provision was made. That is why so many prior judgments of this Court emphasise the need for proper disclosure as to a claimant’s financial circumstances, including their expenditure.
Peter can fairly be criticised for not putting on detailed evidence as to his expenditure. I am inclined not to accept his submission that “the lack of detailed financial disclosure … is less of an issue, as it would be in a 7 or $800,000 estate”. Even if one was to accept that submission, I would still be entitled to not resolve issues in Peter’s favour where there is uncertainty left by imprecise evidence before the Court (see Blendell at [28]-[29]).
In this case however, whatever might be said about the imprecision in Peter’s updating evidence as to his expenditure, the evidence he has put on about his income and savings reveals clearly that Peter’s income is paltry. Peter has negligible cash savings and superannuation. His annual taxable income in 2025 was $22,255. That is plainly not sufficient to meet basic living costs. His business income is also not much and there is evidence that while Peter is willing to work more if more work came his way, things have been quiet since Peter’s divorce (TR P85 L30-36). Peter’s income is so paltry that even in the absence of detailed evidence as to Peter’s expenditure, I can accept his income is either barely sufficient or insufficient to meet his necessary expenditures. This is not to necessarily condone Peter’s non-disclosure as to his current levels of expenditure, although I should make it clear I am not suggesting that the lack of updating evidence as to his expenditure was deliberate or motivated by an intent to hide his updated expenditure levels. Rather, in this case, because the Court can be satisfied that Peter’s income is as low as he says it is (Angela did not seem to suggest his income is or will likely be higher), and will possibly remain similarly low in the near-term, it is easier to infer Peter is “scraping through”, as he said in cross-examination.
Additionally, although precise financial figures have not been provided, Peter’s recent hospitalisations and diagnoses of depression and ADHD, suggest he has medical and health needs over and above basic living needs. These aspects of Peter’s circumstances are not seriously (or at all) in dispute.
In deciding on what order ought to be made, I reiterate that in addition to the bare necessities of life, I may take a broader view and have regard to Peter’s maintenance and advancement, particularly in the context of a large notional estate. In this, I consider it appropriate to make an order that will include provision for maintenance and support in the near future to Peter as he addresses his mental health issues. I am of the view that Peter is in need of immediate financial assistance, but that this financial need will (hopefully) decline in the longer term, as I have also made provision for a property containing acreage, which can be used as Peter’s earning capacity returns.
I have had regard to Peter’s annual income of $22,255 and his lack of savings or superannuation. While Peter’s latest estimate of his family’s annual expenditure is $91,200 annually, that estimate did not account for his changed circumstances. I will proceed on the basis that Peter’s annual expenditure is considerably less than his estimate. An appropriate ceiling is at the most $75,192 annually, using the figures I reached at [331] for the purposes of demonstration, but his expenditure is potentially less than that figure.
Peter has also disclosed an annual medical expenditure of $1,440 ($120 per month in prescriptions) and expenditure in relation to psychiatry, and there is sufficient basis to conclude that Peter has other significant medical expenses.
Having regard to all of the circumstances at the time of making the order, and to the fact formulating an order for provision is not an exercise in compensation (Pillinger v Lees [2024] NSWSC 1067 at [120] (Hmelnitsky J)), in my discretion I have decided that as part of any order for provision, I will provide an amount of $200,000 for maintenance and to address his ongoing financial needs as he addresses his mental health issues.
Finally, I am of the view that I ought to make some smaller allowance which will provide a buffer for contingencies. I accept that the circumstances of this case, where Peter has little savings and negligible superannuation, where there is a lack of competing claims, and where the notional estate is large, indicate that I ought to make such an allowance.
I note it is not necessary to identify what possible adverse events might befall someone that would necessarily require a buffer for contingencies. The buffer for contingencies considers more general needs for circumstances that are unforeseen or no more than mere possibilities, as referred to in the legal principles cited above.
Noting that “such allowances are generally not large and rarely in six figures”, but that also the size of the available estate is a paramount consideration with respect to a buffer for contingencies, in my discretion I have decided that I ought to allow for an amount of $75,000 as a buffer for contingencies for Peter.

Pronesti v Napoli (No 2)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

Parties

Legislation Cited (18)

JUDGMENT

Introduction

Background

Procedural history

The will and estate and notional estate of the deceased

Hearing details

Overview of 2003 legal framework

Legal principles – Duty to disclose financial position

Section 7 of the FPA where no grant

Issues and Summary

Evidence and Credit

Affidavits and other evidence

Legal principles – fact finding and witness credibility

Witnesses and witness credibility and reliability

Peter

Cathy

Tony

Marina

Legal principles – Inferences that should be drawn from the failure to call witnesses and evidence

Legal principles - Evidence of competing financial circumstances

Evidentiary ruling: exclusion DNA test

The Facts

Fact finding

Factual background: facts not seriously in dispute

The deceased and the Napoli family

Rosa and the Pronesti family

Joe (Napoli) and Carmela (Pronesti)

The purchase of the Castle Road Property

Farming business and Joe’s house

Sale of the Properties

Issue 1: Is Peter an eligible person?

Statutory and legal context

The law

Submissions as to standard of proof

Submissions and Further Findings

Rosa’s 2009 disclosure

Rosa’s 2023 disclosure

The deceased’s 5 acres promise

Rosa’s 2003 hospital visit request, the 2003 hospital visit, the 2003 hospital conversation and Rosa’s 2003 disclosure

The Exclusion DNA test

Joe is “99.9% sure”

Section 26 Order and Section 29 Inference

Determination

Issue 2: Should the Court make an order extending the period within which Peter may make an application for a family provision order?

Legal principles – Making an application out of time

Plaintiff’s submissions

Defendant’s submissions

Determination

Sufficient cause

Exercise of discretion

Issues 3 and 4: Was there inadequate provision, and if satisfied that inadequate provision has been made, what order (if any) for provision ought the Court make?

Relevant legal principles

Legal principles – Adult child

Legal principles – Bare paternity

Legal principles – Large estate

Legal principles – Buffer for contingencies

Qualifications on “Principles”

Peter’s circumstances

Personal and family circumstances

Work and the company

Medical and Mental health

Financial

Submissions and consideration of Re Fulop factors

Re Fulop factor (a): the nature and quality of the relationship between Peter and the deceased

Re Fulop factor (b): the character and conduct of Peter (before and after the death of the deceased, and includes s 9(3)(b))

Re Fulop factor (c): the nature and extent of Peter’s present and reasonably anticipated future needs

Re Fulop factor (d): the size and nature of the estate of the deceased

Re Fulop factor (e): the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased

Re Fulop factor (f): any contribution, financial or otherwise, direct or indirect, by Peter to the property or welfare of the deceased (which includes s 9(3)(a))