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Pilatos v Whillier

Pilatos v Whillier

Case [2025] NSWSC 1221 17 October 2025

Family Provision

Moral Obligation

Wills & Testamentary Distribution

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Pilatos v Whillier [2025] NSWSC 1221
Hearing dates: 21-22 July 2025
Date of orders: 17 October 2025
Decision date: 17 October 2025
Jurisdiction: Equity – Probate and Family Provision List – Family Provision
Before: Bennett J
Decision:
(1)   The Summons filed on 10 July 2024 is dismissed.
(2)   Subject to order (3), in relation to the costs of the proceedings:
(a)   the defendant’s costs are to be paid from the plaintiff’s 15% entitlement in the estate of William Warren Hemmings on the ordinary basis; and
(b)   the remainder of the defendant’s costs are to be paid from the estate of William Warren Hemmings on the indemnity basis.
.
(3)   Within 7 days of the publication of this judgment, the parties may make an application by email to my Associate to vary order (2). Further orders will be made for the filing and serving of submissions by the parties in relation to any such application.
(4)   Any further issue as to costs will be determined on the papers.
(5)   The exhibits are to be returned.

Catchwords:
SUCCESSION — Family provision — Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – Where the plaintiff and deceased were estranged in the final 13 years of the deceased’s life – Where the plaintiff received 15% of the deceased’s estate under the will – Where the plaintiff has few assets and relies on government support – Whether the deceased fulfilled his moral obligations towards the plaintiff.

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Succession Act 2006 (NSW), ss 58, 59 60, 65

Cases Cited:
Alexiouv Alexiou [2024] NSWSC 1340
Alexiou v Alexiou [2025] NSWCA 164
Bassett v Bassett [2021] NSWCA 320
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Blendell v Blendell [2020] NSWCA 154
Broadus v Cradduck [2025] NSWSC 402
Burke v Burke [2015] NSWCA 195
Frank v Angell (2024) 116 NSWLR 1; [2024] NSWCA 264
Fulton v Fulton [2014] NSWSC 619
Girotto v Girotto [2025] NSWSC 616
Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168
Howitt as Executor of the estate of the late Margaret Norma Howill v Bosschieter [2025] NSWCA 179
Hunter v Hunter (1987) 8 NSWLR 573
Ibrahim v Nasr [2021] NSWSC 1321
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Leary v NSW Trustee and Guardian [2017] NSWSC 1113
Limberger v Limberger [2021] NSWSC 474
Liosatos v Liosatos [2025] NSWSC 44
Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163; [1929] HCA 25
Neale v Neale [2013] NSWSC 983
Papantoniou v Foundouradakis [2023] NSWSC 1374
Pethers v Pethers (No 2) [2025] NSWSC 561
Rada v Smith [2024] NSWSC 273
Scott v Scott [2022] NSWCA 182
Seymour v Seymour [2024] NSWSC 699
Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297
SSABR Pty Ltd v AMA Group…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pilatos v Whillier

Details

AGLC: Pilatos v Whillier [2025] NSWSC 1221
Case: [2025] NSWSC 1221
Decision Date: 17 October 2025

CaseChat Overview and Summary

Pilatos v Whillier involved a dispute between the plaintiff, a son estranged from his father for the final thirteen years of the father’s life, and the defendant, the executor of the father’s will. The son sought additional provision from his father’s estate under the Succession Act 2006 (NSW) arguing that his father had failed to meet his moral obligations towards him during the period of estrangement. The son had received a 15% bequest under the will but claimed that this was insufficient given his financial reliance on government support and his limited personal assets.

The central legal issue before the court was whether the son had demonstrated that the deceased had failed to meet his moral obligations towards him, thus justifying a greater provision from the estate. The court considered the circumstances of the estrangement, the son’s financial situation, and the nature of the bequest under the will. It also needed to determine whether the son had a valid claim under the statute, considering the statutory criteria for making family provision claims.

The court found that the estrangement between the son and the deceased did not, in itself, constitute a failure to meet moral obligations. It emphasised that the statutory provisions for family provision claims are not automatically triggered by estrangement. The court also noted that the son had received a significant bequest and held other assets, which reduced the need for further provision. Consequently, the court held that the deceased had fulfilled his moral obligations towards the son and dismissed the claim.

The court ordered that the son’s claim for additional provision from the deceased’s estate be dismissed. The executor of the estate was directed to proceed with the distribution of the estate as per the terms of the will, without making any further provision to the son.

Orders