Parentage testing in family provision claims — establishing eligibility

Case note: Pronesti v Napoli (No 2) [2026] NSWSC 856

A recent decision of the Supreme Court of New South Wales (NSW) in Pronesti v Napoli (No 2) [2026] NSWSC 856 required a plaintiff seeking family provision from a deceased estate to undergo a ‘parentage testing procedure’ (more commonly known as a ‘DNA test’) in order to establish his eligibility to bring the claim.

The purpose of the test was to establish whether the plaintiff, Peter Pronesti, was a biological child of the deceased man, Salvatore Napoli, who had died in 2003. If the test was conclusive then he would be eligible to pursue his claim to seek family provision from the deceased man’s estate.

The general position at law

In NSW, as is the case in Victoria, biological and legally adopted children of a deceased person fall within the definition of an ‘eligible person’ to bring a claim for family provision against the estate of their parent.

To be awarded provision out of the estate of a deceased person, an eligible person needs to establish both of the following:

• That at the date of the deceased person’s death, the deceased owed a moral duty to the eligible person to provide for their proper maintenance and support out of their estate; and
• The deceased’s Will or, if the deceased person died without leaving a valid Will, the applicable intestacy provisions, fail to make adequate provision for the eligible person’s proper maintenance and support.

The facts in Pronesti v Napoli

• Peter Pronesti sought provision from the estate of Salvatore Napoli.
• Salvatore Napoli died in 2003 leaving a Will appointing his wife, Angela, as executor. By the time of trial, Angela was 99 years old and was represented in the proceeding by her litigation guardian, her son Antonio.
• Up until September 2023, Peter believed that he was the youngest of eight children born to Rosa Pronesti and her husband, Giuseppi Pronesti.
• At approximately 93 years of age, Rosa allegedly told Peter that his real father was Salvatore as a result of Rosa being raped by Salvatore, and that Salvatore had promised Rosa that he would look after Peter and leave him five acres of land.
• Angela Napoli and Rosa Pronesti were sisters, making Salvatore Napoli the uncle of Peter by marriage.
• At the time that Rosa told Peter that Salvatore was his father, she was said to have been experiencing dementia, and by the time of trial she’d lost capacity to give evidence.
• Peter’s claim for family provision from Salvatore’s estate was entirely dependent upon him being able to establish that he was Salvatore’s son.
• Antonio, on Angela’s behalf, disputed Peter’s claim that he was Salvatore’s son.
• Peter undertook a DNA test, as did Sam Pronesti, who was a child of both Rosa and Giuseppi Pronesti. The result of those tests excluded the possibility of a shared patrilineal heritage, demonstrating that Giuseppi Pronesti was not Peter’s biological father.
• Initially, Peter sought orders of the Supreme Court of NSW that he and two of Salvatore’s sons, Antonio and his brother Giuseppi Napoli, undergo a DNA test.
• In 2024, Justice Kunc of the Supreme Court of NSW held that there was real utility in ordering the Napoli brothers to undertake a DNA test because a negative result would bring Peter’s proceeding to an early end, saving everyone time, trouble, and costs.
• Neither Antonio nor Giuseppi undertook the DNA test despite being ordered to do so, and no evidence was led at trial as to their failure to comply with the Court’s order.
• Salvatore left a last Will leaving all of his estate to Angela, and if she failed to survive him, then his estate was to be given equally to his three surviving children, including Antonio and Giuseppi Napoli.
• Salvatore and Angela owned two pieces of real estate together at the date of his death in 2003. Those properties were sold in 2024 for approximately $72 million. By the time of trial, Salvatore’s estate was valued at $28,640,000.
• Justice Bennett held that, on the balance of probabilities, Peter was Salvatore’s son and was therefore eligible to seek an award of family provision from Salvatore’s estate.
• His Honour inferred that Antonio and Giuseppi Napoli’s unexplained refusal to undergo the court-ordered DNA test was likely due to the expected result being favourable to Peter. That inference was that it was more probable than not that the outcome of the test would be unfavourable to them.
• His Honour awarded an amount of $975,000 in family provision to Peter.

Conclusion

If executors are faced with a person claiming they are the biological child of a deceased person and seeking family provision from that person’s estate, then it is prudent to deal with the issue early. Any children of the deceased person ought to undergo a DNA test so that the issue of the parentage of the claimant can be resolved promptly. If they do not, then the court can draw inferences from parties refusing to undergo such a test.

Contact us

Disputes concerning parentage can significantly affect the administration of an estate and the outcome of family provision proceedings. If you would like to discuss a family provision claim, estate dispute or issue involving parentage, please contact a member of our Wills, Trusts & Estates team.