Is a Future Inheritance a Relevant Consideration in Family Provision Proceedings?

The plaintiffs' each made a family provision claim against the estate of their (alleged) father. There was no dispute that the plaintiffs' were eligible persons.

Prior to the hearing, the executor issued subpoenas to the mother and stepfather of the plaintiffs for various documents, including the will of each. The executor alleged that each of the plaintiffs had a potential inheritance out of their mother and stepfather's estates which was a financial resource, thus, it was necessary to subpoena the wills to allow the court to appreciate the value of the plaintiffs' prospective inheritance.

In considering the relevance of the subpoenas, Hallen J concluded that a future inheritance was not a financial resource, noting the following:

In a case such as this one, that an applicant is, or may be, a beneficiary named in the Will, or on intestacy, of a person who has not died is, in my view, irrelevant otherwise. The potential inheritance of an applicant is too speculative to be considered as a financial resource, given that a testator can, ordinarily, change his, or her, Will, and because a Will has no legal effect until the death of the testator. Testamentary intentions may change. At the date of death, which may be some time away, the applicant may no longer be a beneficiary named in the Will, or the person may not have died intestate. At the date of the hearing of the claims, assuming the testator or intestate is alive, the applicant for a family provision order would have no entitlement to, control over, or relative certainty of receipt of, property of the testator or intestate.