

Can a former spouse claim on a will deceased estate ?
The short answer is YES. While a former spouse is eligible to make a claim this fact alone is not sufficient for him or her to be successful.
In relation to former spouses, the Court must first determine whether in its opinion having regard to all of the circumstances of the case (whether past or present) there are factors which warrant the making of the application. This issue is determined on the whole of the available evidence. The whole of the evidence includes the making or otherwise of orders altering property interests in the Family Court of Australia. Whilst the existence of a property settlement will usually preclude a former spouse from successfully claiming further provision this is not conclusive. An application may be entertained if there has been a material change in circumstances since the Family Court property order was made.
Can I protect my will from a claim by my former husband or wife?
Too often a so-called Deed of Release is used by lawyers – it is ill advised to rely on such deeds as they may be set aside by the Court. The only way to bar a claim is to obtain an Order from the Supreme Court pursuant to Section 95 of the Succession Act 2006. In determining an application for approval of a release of a person’s right to apply for a Family Provision Order, the Court takes into account all the circumstances of the case including
(a) it is or was at the time any agreement to make the release was made to the advantage financially or otherwise of the releasing party to make the release;
(b) it is or was at the time prudent for the releasing party to make the release;
(c) the provisions of any agreement to make a release are or were at that time fair and reasonable; and
(d) the releasing party has taken independent advice in relation to the release and if so has given due consideration to that advice.
For more information call Windsor Law Group on 02 9709 6415
Discretionary Trusts and Family Law:
There have been a number of recent cases that have demonstrated the evolution of the way in which the Family Court views discretionary trusts in relation to property proceedings. Some of the relevant cases are outlined below.
Harris v Harris
The Full Court found that the Husband did not control the Trust because:
- The Trust was originally established by the Husband’s father
- The Husband was not the appointor of the Trust. The Husband’s mother
was the appointor - The Husband was not a shareholder or director of the corporate trustee of
the Trust. The Husband’s mother, the Husband’s son from a previous
marriage, and a long-standing friend of the Husband were the directors and
shareholders of the corporate trustee - Whilst the Husband and wife each personally received distributions of
income in prior income years, the distributions made to the Company were
invalid.
As such the Full Court ordered that a retrial be held, and that the question of whether the assets of the Trust are the assets of the Husband or only a financial resource available to him shall be determined at the retrial.
Morton v Morton
In the case of Morton v Morton, the Court found that the discretionary trust in question was a financial resource available to the Husband and was not the property of the Husband .
AC and Ors & VC Anor
The Family Law Court can affirm that it requires a third-party trustee of a discretionary trust to cause the trust to vest and make trust property available to husband and wife beneficiaries for their property settlement, thus making the assets of a discretionary trust available as assets of the parties.
The trial judge held that there existed sufficient circumstances to give the husband and the wife a sufficient interest in the trust to justify the Court using its third party powers under Part VIIIAA of the Family Law Act to require the trustee to cause the trust to vest.
This decision is seen as significant, as it see further erosion into a party’s ability to quarantine or hide assets by way of a discretionary trust.
When dealing with discretionary trusts in the family law context, it must be determined whether a spouse has legal or de facto control of a discretionary trust. The Family Court usually pays great attention to the provisions of the trust deed.
A word of caution as the test for whether a person controls a discretionary trust for taxation purposes is a different test to the family law test. An order of the Family Court which affects the property of a trust may have taxation consequences.
Need family law advice ?
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