Family violence and historical allegations of abuse in the Family Provision jurisdiction

INTRODUCTION

Historical sexual abuse and family violence allegations against (usually) deceased parents are common place in the family provision jurisdiction. It is a fraught, painful and complex issue both for plaintiffs who are compelled to relive the experience and the childhood trauma but also for executors of deceased estates who have to confront and deal with these allegations, sometimes for the first time. For the latter, who are more often than not other family members (siblings, surviving partners, uncles, aunts, friends) learning of these allegations for the first time engenders anger, disbelief and distrust towards a plaintiff. They are placed in a difficult position of being compelled to unearth a history they thought they had buried long ago, or deal with its consequences for the first time whilst bearing the heavy burden of protecting testamentary freedom. For plaintiffs, these historical claims are critical to explain periods of estrangement and their lack of contact with the deceased. They too do not want to unearth sordid buried history, but how else do they explain complex family relationships they have endured and lack of contact with the deceased to prove a moral responsibility owed to them?

The tension is real. When I act for executors the retort is "this is rubbish and an excuse to explain their lack of love for [said parent] and is just a greedy entitled grab for something they were never justified in having!" When I act for plaintiffs the reaction is "I was the one that protected my siblings from [said parents'] wrath and they got the good dad/mum whilst I got the evil one." But how does a Court treat such allegations? All of us expert in this jurisdiction advise our clients whether they are plaintiff or executor that family provision claims are not quasi crime compensation claims against the deceased estate. But the courts recognise historical abuse claims against deceased estates are a relevant factor in considering whether or not a testator owed a moral obligation and duty to provide for that claimant. What is the extent of this relevance? How does the court weigh up such considerations and how does it treat the evidence of such allegations when the deceased is not here to defend themselves?

In this article I will be discussing the recent New South Wales case of Nevin v Nevin-Large [2026] NSWSC 1009 to illustrate the fundamental legal and evidentiary principles applied by the courts when historical abuse allegations are made against deceased persons in the family provision context.

Nevin v Nevin-Large [2026] NSWSC 1009 per Bennett J

Facts

The plaintiff made an application for her further provision pursuant to s.59 of the Succession Act 2006 (NSW). The deceased left his entire estate to his daughter from his second marriage who was also the defendant/executrix. The plaintiff relied on allegations that the deceased sexually and physically abused her between the ages of 4 and 18 years. The plaintiff left the family home at aged 18 and became estranged from the family from that point.

The plaintiff's parents separated in 1979 when she was 8 years old. She alleged that the sexual and physical abuse began when she was 4 years old and lasted until she was 18 years. After her parents' separation at age 8 she lived with her mother who was an alcoholic and drug addict. The year following the separation the Department of Communities and Justice removed the plaintiff from her mother's care and placed her into the care of the deceased and his now second wife. At that time the plaintiff was 9 years old. The plaintiff's mother died and there was no contest about the plaintiff's early childhood wherein she recounted constant arguments between her parents and witnessing them being drunk and abusive towards each other. They both abused the plaintiff.

The plaintiff left the home of the deceased and his second wife when she was 18 years old. The defendant (plaintiff's stepsister) became aware of the sexual abuse allegations during a family argument between the plaintiff and her father when the plaintiff was 18 years. This argument was the catalyst for the plaintiff leaving home. The plaintiff's stepmother gave evidence that the plaintiff told her her of the abuse allegations sometime after she left their home and said that she didn't believe these allegations and would never have left her own children (the defendant being one of them) in the care of the deceased. The defendant also gave evidence that she confronted her father and he emphatically denied the allegations and she believed him. The plaintiff and the defendant were estranged for 34 years (from the time the plaintiff left the second family home). It was the defendant who contacted the plaintiff via Facebook to reconnect. They did so. Not surprisingly the connection ceased after the defendant found out that the plaintiff was intending to make a family provision claim.

The distributable balance of the estate was estimated to be $745,131.84. The second wife also made a seperate claim for provision that settled with a lump sum pay out to her. The Court estimated that with all the costs of the litigation including the settlement of the second wife's claim, the estimated distributable balance of the residue would be $450,131.84. However, the court noted some uncertainty in relation to costs and proceeded on the basis that the net distributable estate out of which a family provision order may be made was in the sum of $665,131.84. Either way, it was not a large estate.

The issues identified by the Court for determination

(1) Should the Court make findings as to whether the abuse occurred?

(2) If the answer is yes, is the Court satisfied to the requisite standard that the abuse took place? (emphasis added).

(3) Has adequate provision for the proper maintenance, education or advancement if life of the plaintiff not been made by the Will of the deceased?

(4) If such provision has not been made, what, if any, order does the Court think ought to be made for the maintenance, education and advancement in life of the plaintiff having regard to the facts known to the Court at the time the order is made?

What did the Court find?

The Court was satisfied as to the following matters:

A. Having regard to the legal principles and the relevance of the evidence to these proceedings, findings should be made about the alleged abuse (emphasis added).

B. The Court was satisfied to the requisite standard (emphasis added) that several instances of sexual and physical abuse did occur as alleged by the plaintiff.

C. Adequate provision for the proper maintenance, education and advancement in life of the plaintiff has not been made by the Will of the deceased; and

D. The Court ought to exercise its discretion to make an order for provision out of the estate of the deceased for the maintenance, education and advancement in life of the plaintiff.

The Law

Should the Court make findings on whether the abuse occurred?

The plaintiff relied on the decision of Meek J in SAP v SAD1 [2025] NSWSC 138 wherein the Court there held that if there is a serious allegation of fact which is relevant to or materially bears upon a real issue in the proceedings, then prima facie, it ought to be determined. In so doing, the requisite standard of proof in family provision claims is the civil standard - proof on the balance of probabilities as is required by s.140(1) of the Evidence Act. The seriousness of the allegations made and their gravity to the issues in dispute are also matters the Court may take into account in deciding whether these facts have been proven to the requisite standard - the so called Briginshaw standard of proof.

The Court in SAP encapsulated the Court's power in this regard as follows at [152]:

"Depending upon the nature of the real issues in dispute in any given family provision proceedings, there may be proper and appropriate reasons to make findings regarding alleged abuse. For example, such findings may be necessary if it is said that an assault or abuse impinges upon an applicant's present financial circumstances or relevantly provides an explanation for the conduct of the applicant towards the deceased generally or an explanation for the applicant's mental state giving rise to needs."

Principles regarding whether findings should be made about alleged abuse

The following principles are summarised.

Firstly, there is no general principle that a court should not make findings about sexual abuse allegations in family provision claims because of the difficulties associated with the accused deceased not being in a position to refute such claims.

Secondly, whether it is appropriate to make such findings regarding alleged abuse will depend on the nature and extent of the issues in dispute and in particular whether the abuse is relevant to an applicant's financial circumstances, the deceased's conduct towards an applicant, or the applicant's mental state giving rise to relevant needs.

Finally, the deceased's responsibility for the abuse may impact upon and reinforce the deceased's obligations on what is proper provision for the plaintiff.

What findings did the Court in Nevin make concerning the abuse allegations?

In Nevin Bennett J held that the plaintiff's allegations of sexual and physical abuse by the deceased against her was important to understand her lack of contact with him and the whole family from the time she left home. Bennett J held further that this history assisted the Court to understand the plaintiff's mental state, the course her life was to take, the challenges she faced in the past and continues to face because of the trauma that she claims the deceased perpetrated on her. Of significance was the Court's determination that this fact finding process allowed due consideration of the moral obligation the deceased owed to the plaintiff. Bennett J emphasised the Court's duty to be persuaded to the standard of proof required by law and the plaintiff's evidentiary burden required to be discharged by s.140 of the Evidence Act and the Briginshaw standard.

The Court was provided with evidence from the plaintiff that she attended counselling sessions with a social worker 4 years after leaving home. This evidence was to show the temporal connection between the abuse and the help sought by the plaintiff in dealing with the problems she was having with the deceased and how the deceased treated her. The Court accepted this evidence as part of the plaintiff's narrative of the historical abuse allegations. The plaintiff led evidence of hospital records in which the abuse was recorded in the social worker records. The plaintiff was 22 years when she attended the hospital's sexual assault centre . Those records were used to show that the plaintiff's primary evidence was given prior to those records being obtained and hence were unprompted by them. The hospital records were consistent with the plaintiff's experience recorded in her primary affidavit because they described the abuse in detail together with the suicidal thoughts that the plaintiff was having and the reasons why the plaintiff could no longer maintain contact with her father. The Court accepted this evidence as persuasive evidence of the requisite standard of proof in making findings of abuse by the deceased against the plaintiff.

The plaintiff relied on a psychology report obtained for the trial and tendered in evidence. The defendant objected to the report on the grounds that the plaintiff had not sought to show the proposed use of the document as coming within the prescribed Practice note requirements of the Court. Bennett J held that the report formed an independent record as told to a health professional about her history in more recent years and the report assisted the Court to understand the recent health professional evidence as to the status of the plaintiff's mental health. The only limitation placed by the Court on this report was on the words "as a result of her childhood abuse" which the plaintiff submitted ought to be treated as words limited to the plaintiff's recollection of that history.

The defendant submitted that the Court could not be satisfied on the balance of probabilities that the abuse took place, but the Court should note that the plaintiff believed the abuse occurred and the plaintiff's lack of contact and estrangement with the deceased was motivated by that belief. It was therefore not possible to attribute any blame to the breakdown of the relationship between the plaintiff and the deceased. The defendant further submitted that if there was a positive finding of abuse the plaintiff had failed to establish a causal connection between the conduct of the deceased and the harm suffered and the plaintiff's needs.

Findings

The deceased owed the plaintiff a moral obligation and responsibility given the relationship of parent and child.

The deceased did cause the plaintiff harm such that the deceased's moral obligation to make provision for the plaintiff increased for the following reasons.

Firstly, the evidence of psychologists recording her mental health conditions were accepted by the Court.

Secondly, having accepted that the abuse was proven to the requisite standard, the plaintiff was found to have suffered from PTSD and that this condition was causally connected to the abuse.

Thirdly, the Court was satisfied that the significant mental and physical conditions suffered by the plaintiff were caused in part by the deceased and that this significantly increased the moral obligation owed by the deceased to the plaintiff. The Court found further that the plaintiff continued to experience significant ongoing mental harm as a result of the abuse that took place and this harm has continued to the present day.

The order

The defendant's competing needs were considered by the Court and were found to be strong. There was some evidence that the plaintiff's financial circumstances were as a result of bad financial decisions and "messes" that she got herself into but ultimately the Court found that this was a modest estate and in the circumstances of the strong competing needs of the defendant some caution was required to meet a fine balance.

The sum of $125,000 represented 18.7% of the distributable estate but without costs being determined. The plaintiff was awarded her costs out of the estate.

PRACTICE POINTS

This was a difficult case to read because so much effort centred around the historical abuse allegations and the details associated with those claims. This is why these cases are so hard. These allegations need to be ventilated in order to persuade the Court of (1) the requisite standard of proof that the allegations are on the balance of probabilities true and (2) there is a causal connection between the allegations and the plaintiff's station in life as it relates to current and future need. Plaintiffs must be warned about this delicate balance and the limitations of the civil standard of proof.

A defendant/executor cannot disregard these allegations as lies and not deal with them in the context of family provision claims. No legal representative can simply stick their head in the sand. The allegations must be met head on and where possible the causal connection challeged as it affects the needs of the plaintiff.

For the plaintiff, one needs to be prepared to bring as much detail as possible to meet the requisite standard of proof. Work must also be done to prove causation as regards the plaintiff's needs. It will not always be possible to have social worker records; police statements; complaints made; hospital records; psychology reports etc. But as a prudent lawyer, these enquiries must be made. The Freedom of Information applications should be pursued. The historical abuse allegations ought to be able to be understood in the current context of pursuing explicable reasons for estrangement and lack of contact.

No doubt cost considerations will need to be assessed. But, where a claimant makes serious allegations that explain estrangement and lack of contact it is important to bring as much of that to the table as is possible to justify the claim for provision sought. For the defendant/executor the advice must centre around what it is that you can bring to the table to throw doubt that these allegations more likely didn't occur in order to justify minimum provision due to estrangement and lack of contact.

This case highlights the legal principles involving a complex area of law that traverses tricky issues of evidence and rules of procedure. Be ready to examine these to the advantage of your client. Ask the questions; get the detail; put it in your primary evidence; set the boundaries of the dispute; and then build your case from there.