Family Law Evidence Battle: When Can an Incapacitated Friend’s Will Be Subpoenaed for a Property Settlement?

Based on the authentic Australian judicial case Joris & Joris [2025] FedCFamC2F 317, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information:

• Court of Hearing: Federal Circuit and Family Court of Australia (Division 2)
• Presiding Judge: Judge O’Shannessy
• Cause of Action: Interlocutory application concerning an objection to a subpoena in a proceeding for property settlement under Section 79 of the Family Law Act 1975 (Cth).
• Judgment Date: 3 March 2025
• Core Keywords:
  1. Authentic Judgment Case
  2. Family Law Property Settlement
  3. Subpoena Objection
  4. Future Inheritance
  5. Financial Resources
  6. Testamentary Confidentiality

Background:

This case involves an interlocutory dispute within a broader property settlement proceeding between a husband and a wife following the breakdown of their long-term marriage. The central issue is an evidentiary one: the Husband sought to compel the production of the last will and testament of a 95-year-old friend of the parties, who now resides in a nursing home and lacks legal capacity due to dementia. This friend has significant financial links to the Wife, including joint ownership of a valuable property. The solicitor who drafted and holds the will objected to its production via subpoena, creating a legal contest between the court’s need for relevant evidence and a third party’s right to confidentiality over their testamentary intentions.

Core Disputes and Claims:

• The Husband’s Position: He sought access to the will, contending that it was a crucial piece of evidence. He argued that any potential inheritance the Wife might receive constituted a “financial resource” that the Court must consider when determining a just and equitable division of matrimonial property.

• The Objector’s Position (The Third Party’s Solicitor): He argued that the will should remain confidential and not be produced. His objection was based on three primary grounds: client legal privilege which could not be waived by the incapacitated testator; the argument that State-based powers of attorney legislation provides a strict code for when a will can be accessed by an attorney, which was not for personal litigation; and the solicitor’s overarching duty to maintain the confidentiality of his client’s will.

Chapter 2: Origin of the Case

The Husband and Wife, now aged 65 and 60 respectively, were married in 1985 and separated in late 2023 after nearly four decades together, raising three now-adult children. Following their divorce, the Wife initiated proceedings for the division of their matrimonial property.

At the heart of this specific dispute is their long-standing relationship with a man referred to as Mr B. Now 95 years old and living with dementia, Mr B had historically placed significant trust in both parties. For a period of fourteen years, from 2007 until April 2021, the Wife held Mr B’s enduring power of attorney. In a significant shift, in April 2021, Mr B executed a new enduring power of attorney, this time appointing the Husband. Just two weeks later, Mr B made what would be his final will and testament.

The financial connections between the parties and Mr B are substantial. Notably, Mr B and the Wife are joint proprietors of a property valued at AUD $1,000,000. During the property proceedings, the Husband came to believe that the Wife might be a significant beneficiary under Mr B’s will, which, if true, would dramatically alter the assessment of her future financial position.

Seeking to confirm this, the Husband requested a copy of the will from Mr B’s solicitor, the Objector. The solicitor refused, citing his duty of confidentiality. To overcome this impasse, the Husband’s legal team issued a subpoena to the solicitor, compelling him to produce the will to the Court. This action triggered a formal objection from the solicitor, bringing the matter before Judge O’Shannessy for determination and forcing the Court to weigh the procedural fairness of a property settlement against the deeply personal privacy of a vulnerable third party’s final wishes.

Chapter 3: Key Evidence and Core Disputes

The Husband’s Main Evidence and Arguments:

• The Subpoena: The legal instrument used to compel the Objector to produce the will to the Court.
• Evidence of Mr B’s Circumstances: Undisputed facts that Mr B was 95 years old, had been diagnosed with dementia, and therefore lacked the legal capacity to alter his will.
• Land Title Search: Documentary evidence confirming the Wife’s joint proprietorship with Mr B of the Town J property, valued at AUD $1,000,000.
• Legal Precedent: The Husband’s argument relied heavily on the principles established in the case of White & Tulloch, arguing that a potential inheritance is not merely speculative and can be considered a financial resource where the testator is of advanced age and lacks testamentary capacity.

The Objector’s Main Evidence and Arguments:

• Notice of Objection: The formal court document outlining the legal grounds for refusing to allow inspection of the will.
• Arguments from the Powers of Attorney Act 2014 (Vic): The Objector contended that this legislation created a complete code governing an attorney’s access to a will, limiting such access to purposes strictly related to the administration of the donor’s affairs, not for the attorney’s personal legal battles.
• Argument on Confidentiality and Privilege: The core of the objection was that the will was a confidential communication protected by client legal privilege. Since Mr B lacked capacity, he could not waive this privilege, and the solicitor was duty-bound to protect it.

Core Dispute Points:

1. Relevance vs. Speculation: Was the prospect of the Wife inheriting from Mr B a tangible financial resource the Court should consider, or was it too speculative and remote?
2. Confidentiality vs. Court’s Duty: Did the Objector’s duty of confidentiality to his client, Mr B, override the Court’s duty under the Family Law Act 1975 to identify all property and financial resources to ensure a just outcome?
3. Jurisdictional Power: Did the State-based Powers of Attorney Act limit the Federal Court’s power to compel the production of evidence via a subpoena issued under its own rules and governing legislation?

Chapter 4: Statements in Affidavits

While the judgment summarises the parties’ positions rather than quoting directly from their affidavits, the strategic construction of their arguments can be clearly inferred.

The Husband’s affidavit would have meticulously detailed the long-standing relationship with Mr B, his subsequent appointment as attorney, and the significant financial benefit conferred upon the Wife through the joint property ownership. The affidavit’s central purpose would be to construct a logical chain of reasoning: Mr B’s advanced age and lack of capacity made his will final; given his past generosity to the Wife, it was highly probable she was a major beneficiary; therefore, the contents of the will were directly relevant to the Court’s assessment of her future financial resources under Section 75(2) of the Act.

Conversely, the Objector’s affidavit would have been framed as a defence of his professional duties. It would have formally set out the grounds of his objection, asserting that his duty of confidentiality to his client was paramount. It would have argued that producing the will for the Husband’s personal litigation would be an improper use of the document and a breach of the trust placed in him by Mr B.

The Wife, maintaining a neutral stance, would likely have filed a concise affidavit simply confirming the facts of the joint tenancy and her prior role as attorney, while stating she had no knowledge of the contents of the will. This strategy avoided aligning with either the Husband or the Objector, leaving the legal argument entirely to them.

Chapter 5: Court Orders

The Court made the following orders in relation to the subpoenaed document:

1. The Will of Mr B dated April 2021, produced on subpoena, be released to the parties to these proceedings, for use in these proceedings only.
2. In respect of the Will, the parties and their legal representatives be and are permitted to inspect and copy the document upon provision of the appropriate undertaking to the Court.
3. Any copy of the Will be destroyed not later than 29 days after the conclusion of the proceedings.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing was not a contest of disputed facts, but a focused legal debate on a pure question of law. The courtroom dynamic centred on the clash between two fundamental principles: the Court’s need for all relevant information to deliver a just property settlement, and the right of an individual to keep their testamentary wishes private until their death.

Counsel for the Husband argued that the combination of factors—Mr B’s advanced age, his diagnosed dementia rendering him incapable of changing his will, and his established history of financial generosity towards the Wife—elevated the potential inheritance from mere speculation to a tangible financial resource. The argument was that to ignore this reality would be to ignore a key component of the Wife’s future financial security, a mandatory consideration under Section 75(2) of the Family Law Act 1975.

The Objector, in turn, presented a principled defence of his professional obligations. He argued that his duty of confidentiality was not a mere professional courtesy but a cornerstone of the solicitor-client relationship. He contended that the Powers of Attorney Act 2014 (Vic) created a specific regime for accessing a will, and using it for a family law dispute fell far outside its intended scope.

In navigating this conflict, the Judge’s reasoning was pivotal. The Court acknowledged the legitimacy of the Objector’s concerns but ultimately framed the issue through the lens of the overriding statutory duty imposed by the Family Law Act. The judge’s analysis hinged on the precedent set by the Full Court in White & Tulloch, which directly addressed this scenario. As the Full Court stated in that case, and as was determinative here:

It is ultimately a question of fact and degree… 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.

Applying this logic, Judge O’Shannessy concluded that the unique facts of this case—particularly Mr B’s inability to change his will—meant that any potential inheritance was no longer speculative. It had crystallized into a relevant financial resource that the Court was required to consider. However, demonstrating a careful balancing of interests, the Judge first reviewed the will privately to ensure it did not contain sensitive personal matters unrelated to the bequests before ordering its release to the parties under strict conditions of confidentiality.

Chapter 7: Final Judgment of the Court

The Court, having determined that the relevance of the will to the proceedings outweighed the arguments for confidentiality, made the following orders:

1. The Will of Mr B dated April 2021 be released to the parties for use in these proceedings only.
2. The parties and their legal representatives are permitted to inspect and copy the document upon providing the usual undertaking to the Court, which restricts its use to the current litigation.
3. Any copy made of the Will must be destroyed no later than 29 days after the conclusion of the proceedings.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis:

The jurisprudential value of this judgment lies in its clear affirmation of the Family Court’s extensive powers to compel the production of evidence essential for achieving a just and equitable outcome under Section 79. It serves as a strong precedent that the court’s inquisitorial duty to ascertain the full scope of the parties’ financial resources can, in specific circumstances, pierce the veil of confidentiality that typically surrounds a third party’s will. The decision underscores that while duties of confidentiality and privilege are significant, they are not absolute and must yield to the statutory imperatives of the Family Law Act when the relevance of the evidence is sufficiently high.

Judgment Points:

A key procedural detail was the Judge’s decision to personally inspect the will before ordering its release. This was not a legal requirement but a prudent exercise of judicial discretion. It demonstrated a nuanced approach, allowing the Court to act as a filter and safeguard Mr B’s privacy by ensuring that only information relevant to the bequests would be disclosed, rather than potentially exposing unrelated and deeply personal statements. This act of balancing competing interests showcases a judiciary that is powerful in its reach for evidence, yet sensitive in its application.

Legal Basis:

The judgment was fundamentally grounded in Section 79 of the Family Law Act 1975 (Cth), which empowers the Court to make orders altering property interests, and Section 75(2), which mandates consideration of the parties’ future needs and financial resources. The critical interpretive lens was provided by the common law precedents of White & Tulloch v White (1995) FLC 92-640 and De Angelis & De Angelis (2003) FLC 93-133, which established the conditions under which a potential inheritance moves from being “merely speculative” to a relevant financial resource.

Evidence Chain:

The Husband’s victory was not based on a single piece of “smoking gun” evidence but on an undeniable chain of undisputed facts. This logical progression was key:
1. Mr B is 95 years old (advanced age).
2. He has been diagnosed with dementia (lacks testamentary capacity).
3. He has a history of significant financial generosity to the Wife (joint ownership of a $1 million property).
4. Therefore, his will is final, and there is a high probability it contains provisions relevant to the Wife’s future financial resources.

This chain of facts directly satisfied the test set out in White & Tulloch, making the will’s production not just helpful, but necessary for the Court’s determination.

Judicial Original Quotation:

In reaching the conclusion, the Court was guided by the principle of ensuring justice for both parties, as articulated in De Angelis. There, the Full Court, in considering a similar scenario, powerfully stated:

…we think it important to remember that the Court is required in exercising the jurisdiction under s 79 of the Family Law Act 1975 to accord justice and equity to both parties. The question therefore has to be asked whether, in the present case, it would be just and equitable to the husband for the Court to have ignored the probability that, in what could well be [a] very short period of time … the wife could well be the owner of two properties…

This reasoning was directly applicable here. To ignore the contents of Mr B’s will would have been to ignore a significant potential financial resource for the Wife, thereby risking an unjust outcome for the Husband.

Analysis of the Losing Party’s Failure:

The Objector’s arguments, while legally sound in a vacuum, failed because they were misapplied to the unique, overriding jurisdiction of the Family Court. The reliance on client legal privilege was misplaced, as the subpoena compelled production to the Court, not directly to the opposing party, and the Court has the power to abrogate such privileges where necessary. The argument regarding the Powers of Attorney Act 2014 (Vic) was a clever but ultimately irrelevant detour. The Husband was not seeking access as an attorney under that State Act; he was seeking access as a litigant in a Federal Court proceeding, relying on the Court’s own powers under its governing legislation. The Objector’s failure was in not recognising that the broad, statutory duty of the Family Court to consider “all property and financial resources” would, on these specific facts, outweigh the general common law and professional duties of confidentiality.

Implications

1. A Potential Inheritance is Not ‘Off-Limits’: In family law property matters, a future inheritance can be considered a relevant financial resource, especially when the testator is of advanced age and lacks the capacity to change their will.
2. Reality Over Formality: The courts will look at the practical reality of a situation. A high probability of a significant inheritance can be treated as a tangible factor, even if the asset has not yet been received.
3. The Court’s Powers are Broad: The Federal Circuit and Family Court’s power to subpoena documents is extensive and can override duties of confidentiality owed by professionals like solicitors when the information is critical to resolving a case.
4. Confidentiality is Not Absolute: While a will is a private document, its confidentiality is not absolute. It must yield when a court determines that its disclosure is necessary to ensure justice and equity between litigants.
5. Strategic Evidence Gathering is Key: This case demonstrates that a well-placed subpoena, based on a clear chain of reasoning, can be a powerful tool for uncovering the full financial picture in a property dispute.

Q&A Session

1. Why didn’t client legal privilege protect the will from being produced?
While the initial communications between a client and their solicitor to create a will are privileged, the final will document itself is not typically subject to the same absolute privilege, especially against a court subpoena. More importantly, the Family Court’s power to demand evidence relevant to a just and equitable property settlement is a specific statutory power that can override general duties of confidentiality. The Court balanced the public interest in justice between the parties against the private interest in confidentiality and found the former to be more compelling in this specific context.

2. Did the Husband gain access to the will because he was Mr B’s power of attorney?
No, this is a critical distinction. The Husband’s status as the current attorney was part of the factual background that established his close relationship with Mr B, but his legal right to access the will came from the Court’s subpoena power, not from his authority under the Powers of Attorney Act. The Judge’s decision was based on the document’s relevance to the family law proceedings, a completely separate legal basis.

3. Does this judgment mean any potential inheritance will now be part of my property settlement?
Not necessarily. This decision was highly fact-specific and relied on the key criteria from the White & Tulloch case. For a potential inheritance to be considered, there typically needs to be a high degree of probability. This usually requires evidence that the testator is of advanced age, lacks the mental capacity to change their will, and has a will that is likely to benefit one of the parties. A mere hope of inheriting from a young, healthy relative would almost certainly still be considered too speculative and remote for the Court to take into account.

[Appendix: Reference for Comparable Case Judgments and Practical Guidelines]

1. Practical Positioning of This Case

• Case Subtype: Matrimonial Property – Interlocutory Dispute over Production of Documents
• Judgment Nature Definition: Interlocutory Judgment (A decision on a procedural issue within a larger case, not the final judgment on the overall property division).

2. Self-examination of Core Statutory Elements

① Property Settlement – The Four-Step Process:

This case highlights the importance of evidence in the context of the established four-step approach to property settlement under the Family Law Act 1975. The information in the will was deemed relevant to multiple steps:

• Step 1: Identification and Valuation of Property and Financial Resources: This is the first and most fundamental step. The Court must identify the net asset pool of the parties. This includes not only current legal and equitable interests but also “financial resources.” A likely and imminent inheritance, as in this case, falls squarely into the category of a financial resource for the beneficiary party. The will is the primary document needed to ascertain the existence and potential value of this resource.

• Step 2: Assessment of Contributions: The Court assesses the financial contributions (e.g., wages, inheritances received during the relationship), non-financial contributions (e.g., home renovations), and contributions to the welfare of the family (e.g., homemaker and parent roles). While the future inheritance itself is not a contribution, the will might contain statements clarifying the nature of past gifts, such as the Town J property, which could influence the assessment of the Wife’s financial contributions.

• Step 3: Adjustment for Future Needs (s 75(2) Factors): This is where the will’s content is most critical. The Court must consider a range of factors to see if an adjustment from the contribution-based percentage is warranted. These include:

  • Age and health of each party.
  • Income, property, and financial resources of each party.
  • Capacity for gainful employment.
  • Care of children.
  • Responsibilities to support other persons.
  • A reasonable standard of living.
    A significant expected inheritance would be a powerful factor under s 75(2)(b), as it directly impacts the future “property and financial resources” of the inheriting spouse.
• Step 4: Just and Equitable Outcome: The Court must finally stand back and assess whether the proposed division of property is just and equitable in all the circumstances. Ignoring a highly probable inheritance of significant value could easily lead to an outcome that is unjust to the other party, as it would not reflect the true future economic reality of the spouses.

3. Equitable Remedies and Alternative Claims

While not directly applied in this interlocutory decision, principles of equity are highly relevant to the broader property dispute:

• Constructive Trust / Unjust Enrichment: The Husband might argue that, separate from any inheritance, his contributions to the maintenance or improvement of the Town J property (jointly owned by the Wife and Mr B) should be recognised. If he could prove he expended money or labour on the property in the expectation of benefiting from it, and the Wife would be unjustly enriched by retaining that benefit, the Court could impose a constructive trust over a portion of her share in his favour.

• Promissory Estoppel: If Mr B had ever made a clear representation to the Husband that he too would benefit from the Town J property, and the Husband acted in detrimental reliance on that promise (e.g., by providing care to Mr B or spending money on the property), he could potentially raise an estoppel argument to claim an equitable interest, even though he is not on the title.

4. Access Thresholds and Exceptional Circumstances

• Regular Thresholds:

  • Limitation Period: Parties to a marriage must commence property settlement proceedings within 12 months of their divorce order taking effect. For de facto relationships, it is within 2 years of separation.
• Exceptional Channels (Crucial):
  • Leave to Apply Out of Time: If the limitation period has expired, a party can seek leave from the Court to file an application. They must demonstrate that hardship would be caused if leave were not granted and provide an adequate explanation for the delay. The discovery of a previously unknown, significant financial resource (such as a confirmed inheritance) could potentially be a ground for seeking such leave.

Suggestion: The subpoena power is a crucial tool. If you believe your former partner has access to a financial resource they have not disclosed (such as a trust, an expected inheritance under circumstances like these, or assets held by a third party), do not simply rely on their disclosure. Discuss the strategic use of subpoenas with your legal representative to compel the production of documents from third parties like accountants, solicitors, or family members.

5. Guidelines for Judicial and Legal Citation

• Citation Angle:
  This judgment is a valuable authority for any interlocutory argument concerning an objection to a subpoena for a will in family law proceedings. It should be cited to support the proposition that a potential inheritance is a relevant financial resource where the testator is elderly and lacks testamentary capacity.

• Citation Method:

  • As Positive Support: When seeking production of a will, cite Joris & Joris alongside White & Tulloch to argue that the Court must consider the reality of the situation and that confidentiality must yield to the need for a just and equitable determination under Section 79.
  • As a Distinguishing Reference: If opposing production, you would need to distinguish the facts of your case from this one. For example, you could argue that the testator in your case is younger, still has capacity, or that the potential inheritance is of a minor value, making it too speculative to meet the White & Tulloch threshold affirmed in this judgment.

Conclusion

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia (Joris & Joris [2025] FedCFamC2F 317), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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