Supreme Court sets Precedent to Alter a Will which Impacted on Family Law Property Proceedings

A recent decision of the Queensland Court of Appeal has come to our attention which has potential implications for family law matters where one of the parties involved may be a beneficiary under a will of an incapacitated testator. Previously in the family law proceedings, the prospective beneficiary of a will of an incapacitated testator was effectively deemed to have received the benefit of that estate despite not having actually received it for the purposes of a property settlement. The effect of the recent decision handed down is that an incapacitated testator can have the terms of their will changed by application to the Supreme Court by an intended beneficiary involved in family law proceedings.

We are yet to see the effect this court decision will have on family proceedings where the intended beneficiary is in the process of separation.

Currently an expectation of a distribution from an incapacitated testator’s will is generally deemed to be a financial resource or expectancy by the court in family proceedings. This means that a property settlement involving such an expectation is able to be adjusted accordingly. The recent judgment handed down may result in the court placing less weight on the resource or expectancy in family proceedings than they would have prior to the decision.

The Supreme Court acknowledged that:

there is a fundamental difference between assets which form part of the matrimonial pool and thus can be the subject of a property adjustment pursuant to s 79 of the Family Law Act 1974 (Cth), and, financial resources which sit outside of the pool and cannot themselves be divided.”

The decision may encourage the court to consider the prospect of an incapacitated testator’s will being altered in family proceedings, as the case advances the prospect of this occurring. This diminishes the certainty associated with the receipt of a distribution from such an estate and therefore reduces its weight as a financial resource or expectation.

Click here to view the full judgment of the Queensland Supreme Court.

If you believe that you may be affected by this decision, please do not hesitate to contact our office for assistance on (07) 5591 5099.

Writer: Elise Foote

Partner: Sophie Pearson

Date: 21/07/2015