Unfulfilled Intentions, Family Provision and Notional Estate in Boyd v Roberts

The Supreme Court’s decision in Boyd v Roberts [2024] NSWSC 1310, delivered by Slattery J, highlights the enduring reach of the Succession Act 2006 (NSW) (“Succession Act”) in addressing unfulfilled testamentary intentions and financial need within complex modern families. The case involved a family provision claim by the deceased’s adult daughter, Eliza Boyd, seeking orders from the notional estate of her late father, Peter Roberts, who died intestate in 2023. The proceedings reveal the Court’s role in navigating competing moral claims in a blended family, where significant assets were held outside the estate, and the only child was left unprovided for despite the deceased’s apparent, though unrealised, intention to benefit her.

Factual background

Peter Roberts died at age 63, survived by Eliza, his only child from his first marriage, and his second wife Kerrie Roberts. Eliza’s mother, Lee-Anne, had died in 2006. Her death had a profound emotional impact on Eliza, who was only 14 at the time. The Court accepted that Eliza and her father had shared an "incredible bond", and that Lee-Anne’s death marked a significant rupture in Eliza’s life, leading to long-standing grief and emotional turbulence.

Although Peter and Kerrie accumulated substantial assets over their 15-year marriage – including investment properties and joint bank accounts – Peter died without having made a will. The estate itself was small; most property was held in joint names or within a self-managed superannuation fund controlled by Kerrie.

Eliza, now in her early thirties and a mother herself, had once received $200,000 from her paternal grandmother. This sum, sourced from proceeds that would otherwise have passed to Peter, was redirected to Eliza in 2016. While Eliza’s use of those funds was contested, the Court accepted that they were largely spent on household and parenting expenses amid fluctuating income, pandemic hardship and life changes.

Eliza sought provision under Chapter 3 of the Succession Act from both the estate and notional estate. The Court ultimately awarded her $450,000, sourced from joint bank accounts designated as notional estate.

Legal framework

The principal issue was whether Eliza had been left without adequate provision for her proper maintenance, education or advancement in life under s 59(1)(c) of the Succession Act. In answering this, Slattery J applied the familiar two-stage test from Singer v Berghouse (No 2) (1994) 181 CLR 201: first assessing whether the provision was inadequate, and then determining whether and how much provision should be made (at [104]).

Given that Peter died intestate and Eliza received nothing under the rules of intestacy (due to lack of assets in Peter's name), the Court found the threshold question clearly satisfied. As Slattery J observed (at [105]) “... this case… is a very clear one on the question of whether or not adequate provision has been made for Eliza, an eligible person who has received nothing from the estate of the deceased”.

Testamentary intentions: unfulfilled, but evident

Although Peter did not make a will, the Court accepted that he had expressed intentions – repeatedly and sincerely – to benefit Eliza under one. There was no evidence of a binding commitment or promise, nor of formal planning. However, Slattery J found that Peter had discussed his intended testamentary arrangements with multiple trusted individuals over the years.

These intentions were conveyed not only to Eliza but to Peter’s brother David and his long-time employer and friend, Frank Zhang. For example, David Roberts recalled Peter saying, “I need to prepare a simple will to make sure my inheritance is passed on to Eliza and eventually to Kai” (at [55]). Similarly, Peter told Mr Zhang, “I want to give the money I got from [the Mona Vale property] to Eliza, but Kerrie doesn’t agree. I will work it out with her” (at [59]).

However, the deceased never followed through. The evidence showed that he had hoped to reach consensus with Kerrie about a shared estate plan. Kerrie had advocated a five-way equal split between her four children and Eliza. Peter, by contrast, wished to provide a greater share to Eliza, informed in part by his view that Kerrie’s children were financially supported by their father. But consensus never eventuated.

Significantly, Slattery J noted:

“The deceased wanted to benefit Eliza more directly… But he was not able to get Kerrie’s agreement… and he was not prepared to make a will without Kerrie’s consent” (at [52]).

Adequacy of provision and the question of need

The Court accepted that Eliza, despite being employed and married, was without capital and unlikely to accumulate a home deposit in the near term. Her income and that of her husband covered expenses, but savings were negligible. She sought a foothold in the property market and expressed a reasonable desire to remain in the Northern Beaches, where she had deep roots.

“The opportunity to purchase a house and to stabilise their financial future is the most obvious and compelling way that Eliza could be advanced in life at this time” (at [115]).

In assessing “advancement in life”, the Court considered factors such as Eliza’s responsibilities as a parent, her employment history, and her financial maturity. The Court acknowledged her past financial missteps but found these understandable given her age and circumstances.

Notional estate and balancing competing claims

Given the estate’s insufficiency, Eliza sought provision from notional estate; specifically, joint bank accounts and the SMSF.

The Court acknowledged that Kerrie, now 63, was entitled to financial security in her remaining years (at [117]):

"The Court recognises that as the deceased’s widow her financial position and accommodation must be kept secure, should the Court intervene to make an order for provision."

The Court declined to designate the SMSF as notional estate. Doing so would have necessitated the sale of the Megalong Street property, which was held in the SMSF and intended for long-term capital growth and retirement income. The reasons were three-fold (at [123]:

"There are three reasons why the Megalong Street property should not be designated as notional estate. First, Kerrie’s long-term financial welfare would be best served by preserving her superannuation to its maximum extent. Superannuation is a tax-sheltered environment from which she can earn income to fund her retirement. That was her and the deceased’s plan and it was a good one. Secondly, Kerrie said that prices in the Leura property market were not at their best at the present time and were presently unlike the Sydney city market and it was not a good time to force a sale of that property. Thirdly, the corporate trustee has not been joined as a party to these proceedings. That is not an insuperable obstacle is [sic] the defendant is the controller of the corporate entity and she is amenable to the Court’s orders. But it is a complication that can be avoided."

However, the jointly held Commonwealth Bank accounts were designated as notional estate. At the time of the hearing, their balance was approximately $632,000, though reduced by legal costs and withdrawals since Peter’s death. Slattery J considered that designating those accounts would not unreasonably disrupt Kerrie’s financial expectations, provided that part of the award was deferred:

“An award of $450,000 should not be too burdensome for Kerrie” (at [127]).

To cushion the impact, $350,000 was ordered payable within 28 days, with the remaining $100,000 deferred for 12 months and accruing interest.

Conclusion

Boyd v Roberts demonstrates how the Court may give effect to unexecuted testamentary intentions when supported by credible, consistent evidence and aligned with moral obligations under the Succession Act. While Peter never made a will, his intentions to benefit Eliza were real and enduring, and their fulfilment, albeit through judicial intervention, achieved practical justice.

The decision also reaffirms that inter vivos (i.e. lifetime) gifts do not exhaust a parent’s duty to make adequate and proper provision, especially where capital needs persist and no benefit flows from intestacy or the terms of the will. The case is a reminder of the importance of proactive estate planning, particularly in blended families where shared property and divergent testamentary preferences can easily lead to stalemate.

As Slattery J noted, “These reasons, and the relief given, show Eliza does have valuable rights against her father’s estate” (at [72]).

Author: Raffael Maestri

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.