W is for Will – A-Z of Family Law

Family law property settlements can incorporate many other areas of law, from conveyancing to corporate law to criminal law to wills and estates.

The latter crops up more often than most, given the reasonable likelihood of persons related to the parties having passed away before, during or after a relationship and therefore an inheritance being a relevant factor.

What is less clear, however, is whether a relevant factor is a related person being close to passing away. That is, can a court consider the likelihood of a person receiving an inheritance in the future that they are not entitled to at present?

An important case, White and Tulloch v White (1995) FLC 92-640 (‘White’) provides useful guidance on such questions, which Judge O’Shannessy considered within the case of Joris & Joris [2025] FedCFamC2F 317 in Division Two of the Federal Circuit and Family Court of Australia.

The facts were:

• Mr B was the related person. For 14 years, the wife was Mr B’s enduring power of attorney (‘EPOA’).
• Mr B had been involved in the parties’ lives during the relationship, and owned assets alongside the parties.
• In 2021, Mr B made a new EPOA appointing the husband. Around the same time, Mr B also updated his will.
• At the time of the hearing, Mr B was 95 and suffered dementia.
• A copy of the will was sought from Mr B’s law firm, who declined to provide it. A subpoena was then issued and objected to by Mr B’s law firm.

Judge O’Shannessy considered White and its principle that a future inheritance ‘is ultimately a question of fact and degree’.

Relevantly to the facts before the Court, the bench in White further commented that ‘In a case where the testator had already made a will favourable to the party but no longer had testamentary capacity and there was evidence of his or her likely impending death in circumstances where there may be a significant estate, and where there was a connection to s 75(2) factors, it would be shutting one’s eyes to realities to treat that as irrelevant.’

There is no hard and fast rule in property settlements, but the White decision provided some examples of relevance and irrelevance.

Presently, primarily because of Mr B’s age (95 years old), his capacity (or lack thereof i.e. he could no longer change his will), and his connection to the parties, Judge O’Shannessy concluded that a copy of the will should be released to the parties. It was a relevant

consideration within the property settlement assessment; the degree of relevance, however, would naturally depend upon the contents of the will, the facts of the matter at the time, and the discretion of the trial judge.

Where one of the parties may be entitled to a future inheritance:

1. Consider the person’s age, any understanding of their capacity, and the potential of any benefit being gifted to one of the parties.

2. A certainty of relevance is not strictly required; rather, the potential of relevance should be established.

3. Ultimately, it is a discretionary assessment for the trial judge as to how a future inheritance factors into a property settlement.