Charity v Son – Dad’s Will challenged

Charity v Son – Dad’s Will challenged


Dead Zopito Di Cesare left everything to charity. His son, Ivano Ferrante last week filed a Supreme Court writ against the charities. 

Usually, a son argues that he wasn’t getting enough out of his Dad’s Will and asks the court to rewrite the Will (see here). 

However, the son took a novel approach, which is a warning to all professionals. 

Dead Dad wanted to help children – but not his own.   

In making his Will, Dad asked his lawyer to find charities that “only” benefit disadvantaged disabled children. But, according to the son’s writ, the chosen charities had wider “objects”. The charities also supported Aboriginals, ethnic groups and people with chronic illness. 

Most charities’ objects are couched in similarly wide terms.

If successful, the Will remains valid but that gift fails, and falls into the clutches of the next of kin – being the son.

The son’s second attack is that his dad didn’t sufficiently understand English. If successful, the Will is totally thrown out and an older Will or Government imposed Will then applies.

These are the 5 questions on our website to ask to avoid your Will being attacked:
1.    Have you suffered a stroke or depression?
2.    Do you have any children outside the marriage?
3.    Where were you born?
4.    What is your native language?
5.    Can you read and write English fluently?

We will let you know what happens when the Court hands down its decision.

How to Challenge a Will

Family provision

Courts are generally reluctant to interfere with the deceased’s intentions expressed in a will. However, legislation exists in all Australian States and Territories that enables specified people to apply to the court for provision, or further provision, from the estate of a deceased person. Changes are only made where the provisions of a will or the intestacy rules, or a combination of the two, fail to make adequate provision for the proper maintenance and support of the applicant.

In most jurisdictions, the following people can challenge a will:

  • legal spouses, including divorcees from a spouse, that are receiving maintenance;
  • de facto spouses. Courts normally examine the circumstances of each case taking into account evidence of a relationship, whether the de facto was being maintained, whether the de facto was considered part of the deceased’s household and whether the deceased has a moral responsibility for that person. Great care needs to be taken when applying these standards as the criteria for de facto varies from jurisdiction to jurisdiction;
  • children of the deceased of any age. The ability of stepchildren to apply for family provision varies from jurisdiction to jurisdiction; and
  • grandchildren.

The courts have substantial powers to alter a will’s original distribution after considering the individual circumstances of each applicant. The court decides whether a distribution failed to make adequate provision for the proper maintenance, support, education or advancement of the applicant.

Consider the “moral duty” in these 2 cases, Vigolo v Bostin (2005) 79 ALJR 731 and Lloyd-Williams v Mayfield [2005] NSWCA 189.

In Vigolo v Bostin, Vigolo was the son of a wealthy farmer. After a dispute, Vigolo and his father signed a deed where Vigolo was compensated for the value he had added to the farm. The father died. The father’s will made no further provisions for Vigolo. Vigolo challenged the will under the relevant State act. He contended that he had a “moral claim” arising from previous business and family dealings. Vigolo and his wife already owned substantial assets. The claim by Vigolo was considered in light of the obligations and bequests his father had made to Vigolo’s 4 siblings. The High Court held that Mr Vigolo was left with adequate provision for his proper maintenance and advancement in life and the challenge was rejected.

In Lloyd-Williams v Mayfield, Ms Mayfield was the daughter of Mr Stewart, who died without leaving a will. Ms Mayfield was entitled to a percentage of her father’s estate under the intestacy laws. However, most of Mr Stewart’s wealth was in assets jointly owned (see [15 305]) with his second wife. Ms Mayfield only received a few thousand dollars while the wife received all the assets that were jointly owned. The wife died shortly afterwards leaving everything to her niece (Ms Lloyd-Williams). The estate was worth over $8 million. Ms Mayfield challenged the wife’s will, claiming that she was entitled to some of the jointly owned property. At trial and on appeal, the court agreed and awarded Ms Mayfield $850,000.

In Vigolo, the court believed that the applicant had received a substantial provision during the testator’s life. Further, even though the estate of the deceased was substantial, the assets of the competing beneficiaries outweighed the needs of Vigolo. In Mayfield, although no testamentary promises were made, the estate was large and the only competing beneficiary received a considerable proportion of the estate.

Should a court resolve to vary a will, the judge must then decide the size of the provision that should be made. In making a determination, consideration is given to:

  • estrangement from, or poor relationship between, the applicant and the deceased;
  • the conduct of the applicant towards the deceased;
  • the overall size of the estate; and
  • the age and circumstances of the applicant.

The area that is the most contentious in the area of family provision is that of adult children. Court decisions vary between amending a will simply because the relationship exists, to varying a will only where a special need is demonstrated.

If an executor becomes aware that a will may be challenged, he or she should postpone distribution of the estate. Reasonable periods of postponement are set out in each particular jurisdiction in Australia. If the executor has obtained a grant of probate, the executor is entitled to call in the assets and pay debts. If the will is successfully challenged, the Supreme Court does not render it null and void. It merely exercises the power to merely apportion the estate differently to the terms set out in the will.


If you have any further questions please contact us. We are a law firm so we can give legal advice.

Dr Brett Davies, CTA, AIAMA, BJuris, LLB, Dip Ed, BArts(Hons), LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
39 Stirling Highway, Nedlands, WA (Post Office Box 5169, Dalkeith, WA 6009)
Mobile: 04777-96959
Direct: 08 6389-0400
Reception: 08 6389-0100
Email: brett@legalconsolidated.com
Skype: brettkennethdavies

5 Comments

  1. Martin says:

    Thank you for your email. I find them beneficial and recall that the media reported the will challenge as the son suing Ronald McDonald! I have a couple of comments:
    – You mentioned that ‘SMSFs are still a tax free environment’. I am not clear about this as superannuation gets taxed at many stages throughout a super fund ie: contributions, earnings, certain withdrawels, death benefits.
    – You mentioned that ‘Assets are not protected from the gaze of the Family Court – however, this is also the case for Superannuation.’ I am not clear about this as superannuation death benefits are governed in accordance with the Superannuation Act as opposed to the Family Act.
    Any thoughts that you have on this are welcomed.
    Regards. Martin

    • Brett Davies says:

      Martin,
      1. You are completely correct. The expression ‘low tax environment’ would be better. However, it is possible to get the money in tax free, don’t pay any tax on the income and get the assets out tax free.
      2. I also found a big disjunct between the ATO and the Family Court when it comes to Superannuation. The Superannuation Law was re-written many years ago to allow the Family Court to split up and move the superannuation.

      • Martin says:

        An interesting point on the Family Court being written in to superannuation law. A trap to watch out for I think.

        In my opinion, there should be minimal circumstances where a person of sound mind leaves a valid will or binding death benefit nomination outlining their intentions, where society (a court) can overrule the deceased’s wishes. But we hear of it happening all of the time.

        • Brett Davies says:

          Martin, where a spouse had all their assets in Superannuation and then split, it was unfair that the other spouse got nothing – whereas normally you would expect a 50/50 split if the couple had been together for 8+ years.

          As for Wills, it has been the case for a long time that the Supreme Court ‘sits as a wise and just Will maker’ (whatever that means) and carves up your assets as society deems fair (as you say, not what the Will maker deems fair). Wills that you build on our website https://www.legalconsolidated.com.au/wills/ are designed to make it hard for your Will to be challenged.

          In contrast to Wills, Superannuation Binding Death Benefit Nominations are difficult to challenge, and impossible to challenge for Self-Managed Super Funds. Have a look here: https://www.legalconsolidated.com.au/smsf-bdbn-intro/

          • Martin says:

            Thanks Brett. I can understand now how you say the Family Act is relevant to superannuation. Any superannuation assets are included in any family assets to be whacked up under a divorce.

            I got the impression from your feedback that the Family Act could override a Binding Death Benefit Nomination within a SMSF, and that is what I was concerned about. Your feedback above reiterates my understanding that this can not occur.

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