3370 5100

Legal action results from loss of testamentary capacity

Divorce can create problems for the estate planning efforts of others.

A recent case before the Supreme Court of Queensland has highlighted the challenges that can arise when divorce affects the distribution of an estate.

The legal action arose after a woman lost testamentary capacity following her contraction of Alzheimer's Disease. The woman's will dated from 1993 and left a number of properties to her son and his wife, the will formulated shortly after the son's  marriage.

Following the son and daughter-in-law's divorce, the woman's husband, who has also been granted Power of Attorney, applied to the Courts to have her will changed to remove the former daughter-in-law as a beneficiary. Instead, the share of the estate would go to the woman's son and grandchildren of the relationship.

The move was opposed by the former daughter-in-law who argued this was an attempt to shield the family's assets as she and her former husband were currently parties to a property settlement in the Family Court of Australia.

The case went to appeal before the Supreme Court of Queensland. The Judge agreed with the husband of the woman, ordering that the will be changed to reflect the breakdown in the relationship.

For others who are beginning the estate planning process, this case illustrates the importance of a number of factors. The first of these is the impact that divorce can have on a will, especially if a relative through marriage is named as a beneficiary of an estate.

Secondly, it is important for individuals to have a plan in place in case they lose testamentary capacity. In this situation, having an Enduring Power of Attorney can ensure your interests are protected even if you are unable to make these decisions yourself.

If you want to learn more about the estate planning process, make sure you discuss your options with a wills and estates lawyer.