Harris & Company | Family Provision Claims in Deceased Estates: Albury & Anor v Sammut [2019] QSC 105.
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Family Provision Claims in Deceased Estates: Albury & Anor v Sammut [2019] QSC 105.

Family Provision Claims in Deceased Estates: Albury & Anor v Sammut [2019] QSC 105.

The judgement in Albury & Anor v Sammut [2019] QSC 105 in the Supreme Court of Queensland demonstrates the operation of the Succession Act 1981 (Qld) in the making of a family provision application and in ensuring spouses are provided with adequate support for their ongoing maintenance.


Mr Sammut, the deceased, met Ms Wutitum in Thailand in October 2012. Over the following years they had engaged in a domestic relationship and were officially married in Australia in November 2016. Following their marriage, Mr Sammut prepared a will leaving his wife a duplex property in Bundaberg with the intention of her being able to reside in or rent the property and the sum of $30,000 along with other personal effects.

In February 2017, Mr Sammut took ill and was admitted to intensive care. He gave his wife his credit card and instructed her to attend to paying various expenses. In the four days in which Mr Sammut was in an induced coma, his wife withdrew a total of $3,900 up to the maximum daily limit. Evidence provided throughout proceedings indicated that Mr Sammut believed the amounts which had been withdrawn were larger then they in fact were.

Mr Sammut’s daughters, who were the executors of his estate, noticed the withdrawals and the issue of the withdrawals was subsequently raised with Mr Sammut leading to allegations by Mr Sammut against his wife that she had been withdrawing money for her own personal expenditure without his knowledge. Ms Wutitum insisted the withdrawals were for legitimate expenditure authorised by her husband.

Following this event, the relationship between Ms Wutitum and Mr Sammut’s daughters deteriorated and Mr Sammut instructed his solicitor to prepare a new will dated 23 February 2017 removing the bequest of real property to his wife, instead leaving her the sum of $50,000.

Mr Sammut subsequently passed away on the 27 February, four days after the making of his new will giving rise to the family provision claim by Ms Wutitum that the latest will was invalid.


  1. Did Mr Sattum have testamentary capacity to make the 2017 will, and was it in some way impaired by undue influence or delusion that Ms Wutitum had stolen large sums of money?
  2. In any event, was Ms Wutitum entitled to make a family provision claim against the estate?


The test of capacity is set out in Banks v Goodfellow (1870) LR 5 QB 549 at 565 that the testator must understand the effect of making the testamentary instrument including the extent and nature of the dispositions being made. Further the test in Banks requires that the testator’s capacity is not impaired by some mental affliction or influenced by some delusion as to the disposition being made.

The court did not consider in depth whether Mr Sammut had requisite mental capacity as the evidence provided from Mr Sammut’s solicitor demonstrated adequate understanding of the contents of the will.


There was question over whether Mr Sammut had a false believe that the amounts which had been drawn from the accounts were greater than they in fact were. To prove Mr Sammut’s capacity was impaired by delusion, it must be proven he had a “fixed and incorrigible false belief” as to his wife’s conduct and the extent of the amounts which had been withdrawn from his accounts. (see Hamill v Wright [2018] QSC 197 [141] – [146].

The Court held that given Mr Sammut was prudent in organising his finances, it was likely he had an accurate knowledge and understanding of the exact amounts which had been withdrawn and any reference made by him regarding larger sums of money was merely in anticipation of the extent to which his accounts may be diminished if the daily withdrawals had continued.

Family Provision Claim

The basis for the family provision claim was that Ms Wutitum was financially dependent on her husband. In consideration of her financial support, Ms Wutitum undertook domestic duties at their matrimonial residence and provided Mr Sammut with care.

The two step test under the Succession Act 1981 (Qld) s41 (as explained in Singer v Berghouse (1994) 181, CLR 201 at 208-209) is a consideration of:

  1. Whether the applicant was left without adequate provision for their maintenance, education and advancement in life; and
  2. Following the court making a finding of inadequate provision, a quantum of the amount which ought to be made to the applicant with regard to the circumstances.

In deciding whether Ms Wutitum had been left without adequate provision under the first stage, the Court needed to consider the competing claims of the other beneficiaries under Mr Sammut’s will with reference to the size of the estate and the adequacy of the amount with respect to Ms Wutitum’s personal circumstances. As a result, the court found that the provision of $50,000 was inadequate.

In considering the amount which should be provided to Ms Wutitum under the second stage of the test, the court considered her current age, ability, likelihood to find work and her intention to pursue further studies. The Court found that a proper provision to Ms Wutitum in the circumstances would include a place to reside and an amount of savings to assist with future debts and expenditure supplementary to her income.

The Court ordered that Ms Wutitum should be provided with the matrimonial home in which she was currently residing and determined that the amount of $50,000 provided to her under the will would be sufficient.

Disentitling Conduct

An applicant’s entitlement to a family provision order may be limited where an applicant engages in disentitling conduct. Mr Sammut’s daughters alleged that the withdrawal of money from Mr Sammut’s accounts without his consent was a dishonest act which amounted to disentitling conduct.

The Court’s view with respect to this behaviour was that while it was “foolish” on her behalf to withdraw the maximum daily limits from the credit card account, there is a strong likelihood that she did so under genuine concern that she would not be provided for in the circumstances. The withdrawals were not enough to disentitle Ms Wutitum from obtaining further provision from the estate.

The case also highlights the entitlements of individuals upon the death of a spouse by reinforcing the right of a widow to be provided with a place to live and to be given adequate financial support to account for their future needs.


If you require any further information please contact Grant Hansen

Email: ghansen@harrisco.com.au

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