Examples of Completed verified answers

Example 1 Australia

Question ‍

Can the Federal Circuit and Family Court of Australia appoint a personal representative of a deceased spouse as a substitute in the absence of a formal grant of probate?

Verified Answer‍

The Federal Circuit and Family Court of Australia can appoint a personal representative of a deceased spouse as a substitute in property settlement proceedings, even in the absence of a formal grant of probate. This is governed by Section 79AA(8) (and section 90SMA(8) for de facto claims) of the Family Law Act 1975 (Cth) and Rule 3.19 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth). These provisions allow the deceased's legal personal representative to be substituted into ongoing proceedings, provided the proceedings were validly commenced before the death of the party.

No Dispute as to Executor

In Murdoch & Brown (No. 2) [2013] FamCA 732 Cronin J considered whether a legal personal representative order can be made before a grant of probate and reviewed the powers of an executor and the authorities relating to a party issuing proceedings and after that died (see Murdoch & Brown (No. 2) from [6]-[13]). Cronin J concluded that it could in the circumstances of the case where there was no challenge to the will and the executors were clearly designated in the specific circumstances of that case at [14]:

“As such, nothing I have found suggests that a legal personal representative cannot be appointed before probate is granted, provided there is no suggestion that the other party joins issue with the entitlement under the will. Here, as I understand the evidence, the wife does not dispute that right.”

Dispute as to Executor

This is contrasted with the situation where there is a dispute as to who the executor of an estate is and the proceedings are suspended until a grant of probate or letters of administration (see Midhurst (Deceased) & Midhurst [2008] FamCA 393 which concerned an application by the daughter seeking to be substituted for the deceased wife pursuant to s 79AA(8) and the court determined that it was unable to determine who was the wife’s “legal personal representative” ordering that the proceedings be suspended until such time as a legal personal representative is appointed).

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Example 2 Australia

Question

I have a client preparing application for consent orders. we have completed the documents and she is concerned that the husband maybe hasn't disclosed everything but she can't be sure and there’s no evidence of him withholding information. can you assist me in providing advice to the client about what the court might consider if we find out after the sealing of the consent orders that he has undisclosed assets.

Verified Answer

If the client can particularise what it is that has not been disclosed, a letter can be sent to the other party requesting further disclosure and information with respect to that issue. If the other party provides a response confirming that everything has been disclosed but the client still remains concerned, the client can be advised as to the grounds for setting aside property settlement orders under section 79A(1) of the Family Law Act 1975 (Cth), which includes “miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclosure relevant information), the giving of false evidence or any other circumstance”.

In Morrison & Morrison [1994] FamCA153, the Full Court (Fogarty, Baker and Kay JJ) said at [32] “... in order for there to be a just and equitable and an appropriate order altering the interests of parties in their property there must be a full and frank disclosure between them of all circumstances which may be relevant to the determination of their true financial position both presently and in the foreseeable future” and at [42] “the duty of disclosure is a basic duty. Ordinarily a failure to comply with that duty will amount to a miscarriage of justice”.

In Barker & Barker [2007] FamCA 13, the Full Court (Bryant CJ, May and Boland JJ) said at [124] “... where there is some intervening factor known to one party, but not the other, this may lead toa result which is unfair and unjust...”.

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Example 3 Australia

Question

Can a person who is a paid Centrelink carer be a beneficiary under a will?

Verified Answer‍

Legality of Naming a Carer as Beneficiary in a Will

Queensland law imposes no general restriction on naming a caregiver as a beneficiary in a will. A testator has broad freedom of testamentary disposition to leave assets to anyone. There is no statute in Queensland that disqualifies a person from benefiting under a will merely because they are a paid carer receiving Centrelink benefits.

Someone whose caregiving is supported by a Centrelink allowance is not treated as a hired service provider of the person they care for. Accordingly, there is no legal bar to that person being a beneficiary under the cared-for person’s will. The will-maker can validly leave them money or property just as they could to any other friend or relative, provided the will is executed properly and the testator had capacity and was acting freely.

Witnessing and the Interested Witness Rule

The only technical pitfall to avoid is having the carer act as a witness to the will while also being a beneficiary.
Queensland requires two independent witnesses to the testator’s signature pursuant to section 10 of the Succession Act 1981 (Qld) (“Act”). If a beneficiary witnesses the will, the gift to that person is void unless certain safeguards apply.
Under section 11 of the Act, a disposition to an “interested witness” (a witness-beneficiary) is automatically invalid to the extent of that benefit.
However, the Act provides cures: the gift can stand if at least two other non-beneficiary witnesses also signed, if all other affected beneficiaries consent in writing, or if the court is satisfied the testator knew and freely approved the gift.
In practice, to avoid litigation, it is best that a carer-beneficiary not serve as a witness at all. But if they have, Queensland law allows the gift to be salvaged upon proof of the will-maker’s true intent and absence of undue influence. Importantly, merely being a beneficiary (even a carer) does not invalidate the will itself – it only triggers this witness rule if the beneficiary signed as an attesting witness.
Aside from the witness issue, a carer’s inclusion as beneficiary is legally effective as long as the will meets formal requirements and the testator’s decision was free and informed.

Undue Influence Concerns with Carer Beneficiaries

Although it is lawful for a carer to inherit under a will, gifts to caregivers can attract scrutiny in probate disputes.
Caregivers often occupy a position of trust and influence over vulnerable testators, so other family members may suspect the carer coerced or manipulated the will.
Australian courts have acknowledged that a sudden change in an elderly person’s will favouring “a friend or carer” (or one child to the exclusion of others) is a common red flag scenario. However, the legal threshold for proving “undue influence” in the context of wills is high. It requires evidence of coercion overbearing the testator’s free will – mere involvement or persuasion by the carer is not enough.
In Wylie & Anor v Wylie [2021] QSC 210, an aged father revised his estate plan weeks before death to leave virtually everything to a daughter who had moved in as his full-time carer (with her siblings receiving token gifts). The Supreme Court set aside certain inter vivos transfers and adjusted the estate after finding the carer-daughter had exploited a position of dominance over her dependent father.
Notably, that case involved clear evidence of overreach (the carer was also the father’s attorney and isolated him from others). The outcome underscores that while naming a carer as beneficiary is not prohibited, it must truly reflect the testator’s independent wishes. Courts are prepared to invalidate gifts procured by actual undue influence or abuse of confidence.
Best practice when a vulnerable testator wants to benefit a non-family carer is to ensure the will is prepared by a solicitor who can document the testator’s intentions and mental capacity, and ideally have the testator receive independent advice. These steps help insulate the bequest against later challenges.
In summary, a Centrelink-paid carer can lawfully be a beneficiary, but the surrounding circumstances should be carefully managed to avoid any suggestion of impropriety or coercion.

Effect of Inheritance on Centrelink Carer Benefits

Receiving an inheritance will generally count towards the beneficiary’s assets and income under Centrelink’s means tests. For example, a lump-sum bequest could reduce or even eliminate a pension if it pushes the person’s assets over the allowable limit. Centrelink regulations require prompt reporting of any inheritance, and the carer’s entitlements may be recalculated in light of the increased assets.
There is no rule preventing the inheritance itself – the carer is free to take under the will – but they should be advised that their fortnightly Centrelink payments might be affected. In cases where a beneficiary on disability benefits will receive a significant sum, structures like Special Disability Trusts can be considered to help preserve eligibility.

Case Law

Edmonstone v Churches of Christ in Queensland [2018] QSC 261

Deceased resided in nursing home run by the beneficiary and executor of estate was paid employee of beneficiary's nursing home.
Suspicion of undue influence and lack of testamentary capacity overcome due to independent solicitor affidavit.
The gift was held to be a charitable gift and valid even though paid to organisation that provided paid care to the testator.

Woodward v Whitelaw [2004] NSWSC 802

Deceased left the majority of his estate to his neighbour who was also his paid carer.
Step-granddaughter made family provision claim and was awarded a modest lump sum of the estate.
No suspicion about the gift to the paid carer.

Hyatt v Covalea [2011] VSC 334

Residue of estate left to carer of 5 years who received rent-free accommodation for services rendered.
Family provision claim made by the deceased’s daughters.

Carer did not defend the claim and received less than 10% of the estate.

No issue in relation to the validity of the gift to the carer in the will but no moral obligation owed to the carer by the deceased.

Conclusion

A person who is a paid Centrelink carer can indeed be a beneficiary under a will in Queensland.
The law does not disqualify them from inheriting, so long as the will is validly made.
The key considerations are practical rather than prohibitive: avoid having them witness the will to prevent the technical invalidity of their gift, guard against any actual undue influence in the will-making process, document the testator’s voluntary intent to benefit the carer.
When these steps are observed, there is no legal impediment to a devoted carer receiving a legacy under their client’s or loved one’s will.

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Examples of Completed verified answers - Australia