Gifts and Inheritances

Gifts and inheritances received by a party may be considered as property to be included in the inventory of assets in a property dispute.

Gifts and inheritances may be in the form of money or property transferred to either or both of the parties, or other benefits that are enjoyed by both parties such as rent-free accommodation or interest-free loans. The gifts will be credited as a contribution of the party whose parent made the gift.

There are decided cases wherein the expectation of an inheritance is considered relevant in property cases. The case of De Angelis and De Angelis (2003) FLC 93-333 is an example wherein the court took into account a prospective inheritance but only because the mother of the wife was already 90 years old and it was the wife who was the sole beneficiary.

In the case of White and Tulloch v White (1995) FLC 92 – 640, the Full Court illustrates how it did not accept the notion that a prospective inheritance is a financial resource. The husband was allowed to subpoena the wife’s mother for her will but not her financial documents. The Full Court discussed that although a prospective inheritance will not be relative to Section 79 proceedings, it may be relevant to Section 75(2) proceedings depending on the circumstances of the case. The Court noted that prospective inheritance is marked with uncertainty for after all, a person may be disinherited or the property may be lost or given away.

Burke (1993) FLC 92-356 discusses the treatment of inheritance received post separation which the Court said can be left out of the asset pool and dealt with as a Section 75 (2) factor. On the other hand, it can be included in the asset pool thereby increasing the recipient’s percentage entitlements based on contributions that are proportionate to the inheritance.