When “Equal Shares” in a Will doesn’t mean Equal Outcomes:— A Lesson from Roper v Roper

Introduction

Many will-makers assume that dividing their estate equally between their children will prevent disputes. The recent Roper v Roper litigation in Victoria¹ shows that this is not always true.

The Facts

The late Sheila Roper made a Will which left her $1.5 million estate to be split equally between her seven adult children. This meant that each child should have received approximately $215,000.

However, Sheila’s youngest son, Daniel, contested the Will. The Court ultimately awarded him $635,000—almost triple his intended share.

The Court’s reasoning

Daniel’s personal circumstances led the Court to award him a larger share of Sheila’s estate. Daniel had lived in Sheila’s home rent‑free for 17 years, was not working, had minimal savings, and was dependent on her for accommodation. The Court also noted that Daniel had provided care and support for Sheila in her old age.

The Court ultimately awarded Daniel an amount sufficient for him to purchase a suitable home, plus a ‘nest egg’ for his future needs.

The greater provision for Daniel obviously reduced the entitlement of his siblings. The Court noted that whilst none of the siblings were wealthy, they were all more financially secure than him.

The relevant law

When a family provision claim is made against an estate in Victoria, the Court will consider the following when deciding whether a Will should be re-written:

• Whether the deceased had a moral duty to provide for the claimant;
• The claimant's needs. resources and earning capacity;
• The claimant's age, health and future prospects'
• The size of the estate and impact on other beneficiaries;
• The nature of the relationship between the claimant and the deceased
• The claimant's character and conduct; and
• The deceased's wishes, which are relevant but not decisive.

These laws are similar in all Australian states and territories. Generally speaking, only certain categories of persons are eligible to make a claim, including the deceased’s spouse, children and step-children.

What we are seeing in our own matters

The issues and facts in Roper v Roper are not unusual. Sharrock Pitman Legal recently assisted in a similar estate dispute where a sibling sought further provision. That matter resolved at mediation, with the executors agreeing to provide their sister with a small additional sum(on top of her one‑third entitlement) to avoid the uncertainty and cost of a trial.

Take-away points

An equal will is not a guarantee of equal distribution. If a child is dependent, vulnerable or disadvantaged, the Court may—and often will—rewrite the outcome.

Curiously, in the Roper litigation, Daniel decided to appeal the final decision, on the basis that he should have received even more from the estate. He represented himself. The Court dismissed the appeal.

We have also written an article on steps a will-maker can take to reduce the likelihood of a successful challenge against their Will, which can be viewed here.

How Sharrock Pitman Legal can help

For will-makers, planning in advance and a well-drafted Will can mitigate the risk of an estate dispute or TFM claim in the future. Expert financial and legal advice is essential to ensure that your wishes have the best chance of being carried out.

For advice and representation, please do not hesitate to contact our Accredited Specialist Wills & Estates team on 1300 205 506 or sp@sharrockpitman.com.au.

Further reading

[1] Roperv Roper [2024] VSC 249, Roper v Roper (No 2) [2024] VSC 354, Roper v Roper (No3) [2024] VSC 490, and Roper v Roper [2026] VSCA 50

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Disclaimer

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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