Legal Matters Ep 24 Trusts, Family Violence and Property Settlement

Andrew Bell returns to Legal Matters for a wide-ranging episode covering the 2025 expansion of the family violence definition and its direct impact on property settlements, the Caldwell decision on how discretionary family trusts are characterised, and live listener questions on replacing executors, stamp duty exemptions, tenants in common, self-managed super funds, body corporate disputes and pension gifting rules.

Key Topics

• Family violence now directly affects property settlements: Economic and financial abuse, coercive control, dowry abuse and deprivation of liberty are all expressly recognised. See How Is Economic Abuse Considered in a Family Law Property Settlement?
• Discretionary trusts in property settlements: The two-stage characterisation test — effective control plus capacity to benefit. See How Does the Power of Appointment Affect Whether a Trust Is Treated as Property?
• Replacing an executor: Must be done by redrafting the will or adding a codicil. See Can a Spouse Challenge a Will That Leaves the Family Home to the Other Party?
• Stamp duty on spousal property transfers: Queensland provides a full exemption for transfers between spouses of an interest in the family home.
• Tenants in common vs joint tenancy: Joint tenancy means automatic survivorship; tenants in common means each share passes through the estate.
• Body corporate emergency repairs: The body corporate can act without owner consent in an emergency; cost liability depends on whose pipes caused the problem.
• Property pool basics: Everything the couple owns, valued at trial not separation — see What Is a Property Pool and How Do Add-Backs Work?
• The property settlement process: The four-step framework courts apply — see How Does the Family Law Property Settlement Process Work?
• Coercive control as a crime: Now a criminal offence in Queensland, and also falls within the family violence definition in the Family Law Act.

Related long-form guides

• Gold Coast Property Settlement Timeline and Process
• Mediation vs Court in Queensland Family Law

Listener FAQ Highlighted in This Episode

• How do I change my executor? You must update your will — either a new will or a codicil. If you are also a trustee or appointor of a trust, check the trust deed for the process to change that role separately.
• Is there stamp duty when I transfer my house into joint names with my spouse? No — the Queensland Revenue Office provides a stamp duty exemption for spousal transfers of the family home. Land tax and vehicle registration duty also carry spousal exemptions.
• Can a body corporate call a plumber without asking me first? In an emergency, yes. Whether you pay depends on whose pipes caused the problem — pipes within your own unit’s walls are your responsibility.
• Does family violence affect my percentage of the property settlement? Yes. If you can prove on the balance of probabilities that a course of violent or controlling conduct had a discernible adverse impact on your contributions, the court must now weigh that when calculating the percentage split. See How Does Kennon v Kennon Apply to Family Violence and Property Settlements?
• What if only my spouse’s name is on the house title? Legal title is not determinative. The court looks at beneficial ownership, contributions and equitable interests. See If the Family Home Is Only in My Spouse’s Name, Do I Still Have a Claim?
• What happens to my self-managed super fund when I die? The assets pass according to your binding death benefit nomination, not your will — so keeping that nomination current is critical.

Listen to the full discussion above.

Key Takeaways

1. Family violence is no longer just background context in a property settlement. Since June 2025 it is a statutory factor the court must weigh when assessing contributions and future needs.
2. Financial control, coercive control, dowry abuse and isolation are all expressly family violence under both the Family Law Act 1975 and the Domestic and Family Violence Protection Act 2012 (Qld).
3. If there is a family trust in your relationship, find out who holds the power of appointment. That control point determines whether the trust falls into the property pool.
4. Review your will every three to four years — especially if you want to change your executor, which requires a formal will update.
5. Spousal transfers of the family home in Queensland attract no stamp duty — confirm specifics with a solicitor before proceeding.
6. Next week: Andrew will return to explore more recent decisions, including a case where property proceedings were used to gather evidence for overseas litigation.

Annotated Transcript

📋 This transcript has been lightly edited for clarity. Legal commentary and internal links have been added to assist readers. Caller names are as broadcast.

Segment 1 — Opening and Death-in-Property Disclosure

⚖️ Topic: Mandatory disclosure of deaths in Queensland property sales Relevant law: Queensland consumer protection law; contrast with Civil Liability Act 2002 (NSW)

Announcer 4CRB now presents Legal Matters, proudly brought to you by Bell and Senior Lawyers. Call them today for all your legal needs on (07) 5532 8777. This program provides general legal information only. It is not personal legal advice. Everyone’s situation is different, so please seek independent advice for your own circumstances.

Colin Balewski Well, welcome to Legal Matters, and it is a very good morning to Andrew Bell from Bell and Senior Lawyers.

Andrew Bell Good morning. Thanks for having me back here, Colin.

Colin It is an absolute pleasure. You have got some interesting stories from your practice this week. Where would you like to start?

Andrew We had a question about whether you have to disclose if someone died or was murdered on a property you are trying to sell. There are very strong opinions on this, and part of the confusion is that the rules differ between states. In New South Wales, if someone died in your house within the last five years, there is a mandatory disclosure requirement. In Queensland, it is the opposite — you do not have to tell anyone anything. However, if a buyer asks you directly and you lie, you could be caught out under consumer protection laws.

Colin So the “get out of jail free” card is just to tell the truth if asked directly.

Segment 2 — Topic Introduction: Trusts, Control and Family Violence

⚖️ Topic: Property pool recap and 2025 family violence reforms Relevant law: Family Law Act 1975 (Cth) s 79, s 4AB(2), as amended by the Family Law Amendment Act 2024, effective 10 June 2025

Colin The topic of the day is family law: trusts, control, and family violence in property settlements. But first, Andrew, a quick recap of last week.

Andrew Last week we talked about property settlements and the four elements everyone needs to know about. First, the property pool — everything the couple owns, whether it is real estate, superannuation, shares, businesses, vehicles — valued at the date of trial or settlement, not at the date of separation. Contributions are also considered, both financial and non-financial. And since June last year, the court is only looking at property that actually exists, not necessarily what has been spent by either party.

📎 See also: What Is a Property Pool and How Do Add-Backs Work? | Legal Matters Ep 23: Separation, Property Pools and Add-Backs

Segment 3 — Family Violence and Property Settlements

⚖️ Topic: The 2025 expansion of the family violence definition Relevant law: Family Law Act 1975 (Cth) s 4AB(2); Domestic and Family Violence Protection Act 2012 (Qld) ss 8, 11, 12

Andrew Family violence is a sensitive subject. If you or someone you know is a victim of family violence, counselling services are available, and you can call the police. In 2025, the definition of family violence in the Family Law Act was expanded. It now expressly includes economic or financial abuse — and specifically names dowry abuse as an example. It covers unlawfully depriving a family member of their liberty, and preventing someone from maintaining connections with their family. Section 79 now requires the court to consider family violence when deciding how to divide property.

Colin So it goes well beyond physical violence.

Andrew Absolutely. Coercive control is now a crime in Queensland, and all of those oppressive behaviours — someone using their superior economic power, social position or physical size to stop the other person from living a free and full life — fall within the family violence definition for the purposes of the Family Law Act. It is not uncommon for a property settlement process to begin and one person to take all the assets and put them under their exclusive control, leaving the other with no financial resources to legally fight back. Other examples include restricting someone from leaving the house, controlling what they wear, or what they eat.

Colin And how does that wash through into a property settlement percentage?

Andrew If you can prove on the balance of probabilities that family violence had a discernible adverse impact on your contributions — that is the civil standard, more than 50% likely — the court must take that into account when calculating the percentage split. It has always been possible through case law going back to Kennon v Kennon in 1997, but Parliament has now written it directly into the legislation.[^1]

📎 See also: How Does Kennon v Kennon Apply to Family Violence and Property Settlements? | How Is Economic Abuse Considered in a Family Law Property Settlement? | What Is Dowry Abuse and How Does It Affect a Property Settlement? | What Is a Domestic Violence Order in Queensland?

Caller 1 — Margaret: Changing an Executor

⚖️ Topic: Updating an executor named in a will; appointors of trusts Relevant law: Succession Act 1981 (Qld)

Colin We have our first caller. It is a very good morning to Margaret. Margaret, ask your question of Andrew.

Margaret (caller) My solicitor is one of my executors in my will, and I would like to appoint someone else and take him off. Do I have to change my will to do that?

Andrew Yes, absolutely. If he or she is named as the executor specifically, you need to change the will — either via a codicil or by drafting a new will. I would recommend reviewing your will every three to four years, and if you need a change like this, create a new will and name the new executor there.

Margaret I also have two trusts.

Andrew A trust has someone called an appointor who then appoints the trustee who looks after the trust. If you are the appointor and the trust already exists — not a testamentary trust — you can generally revoke the current trustee and appoint a new one under the terms of the trust deed. I would get someone to review the trust deed to confirm the correct procedure.

📎 See also: Can a Spouse Challenge a Will That Leaves the Family Home to the Other Party? | How Does the Power of Appointment Affect Whether a Trust Is Treated as Property?

Caller 2 — John: Guaranteeing a Specific Beneficiary Gets a Property

⚖️ Topic: Joint tenancy, joint names and property succession Relevant law: Land Title Act 1994 (Qld) ; Succession Act 1981 (Qld)

Colin It is a very good morning to John. John, ask your question of Andrew.

John (caller) I have two properties. One is in joint names with my wife, and a second house is entirely in my name. I would like to leave the second house to one specific person. Is there any way I can guarantee they will get it without it being contested?

Andrew If you put the property into joint names as joint tenants with that person, when you pass it would automatically go to them — that is the most certain way. However, you would be giving them an equal property right in the property right now, before you pass, and you cannot revoke that later. You need to take that into account. Other options include a trust structure, or leaving it in your will — though a will may be contested depending on how it is drafted. We did cover the various options and their pros and cons a couple of weeks ago on the program.

John I trust this person completely and I am financially well-off.

Andrew Then potentially it would be worth putting it into a joint tenancy. When you pass, it will automatically revert to them, bypassing the will process entirely.

📎 See also: If the Family Home Is Only in My Spouse’s Name, Do I Still Have a Claim? | Legal Matters Ep 22: Wills, Probate and Family Provision Claims

Caller 3 — George: Stamp Duty on Transferring the Family Home to a Spouse

⚖️ Topic: Stamp duty exemption for spousal property transfers in Queensland Relevant law: Duties Act 2001 (Qld) ; Queensland Revenue Office spousal exemption

Colin We have another caller — it is George. George, ask your question of Andrew.

George (caller) The house we are living in is in my wife’s name. I am thinking of going halves. Do I have to pay stamp duty?

Andrew Why are you looking to do this, George?

George For the sake of my kids — making sure they will inherit part of the house.

Andrew There is an exemption for love and affection where some transfer fees are bypassed, but I want to confirm the full position before giving you a definitive answer. I will check the Queensland Revenue Office and let you know next week.

[After the break]

Andrew During the break I looked it up. There is indeed a stamp duty exemption if you transfer an interest in your family home to your spouse. Land tax and vehicle registration duty also carry spousal exemptions.

Colin Wonderful — so no stamp duty, George.

📎 See also: How Does the Family Law Property Settlement Process Work?

Sponsor Break

Bell and Senior Lawyers — wills, probate, powers of attorney, property matters. Phone (07) 5532 8777 or visit bellsenior.com.au .

Caller 4 — John 2: Tenants in Common on a Commercial Property After a Spouse’s Death

⚖️ Topic: Tenants in common, deceased joint owner, and stamp duty on commercial transfers Relevant law: Land Title Act 1994 (Qld) ; Duties Act 2001 (Qld) ; superannuation binding death benefit nominations

Colin We have another caller — it is a second John. John, ask your question of Andrew.

John 2 (caller) My wife and I owned a commercial property as tenants in common. She has passed away, and I want to bring someone else in. Will I have to pay stamp duty?

Andrew There is no general distinction between commercial and residential property under the Land Titles Act when it comes to ownership structures. Bringing a new co-owner onto a commercial property will likely attract stamp duty — but it depends on how you structure it, whether you are creating a tenants-in-common arrangement or a joint tenancy, and whether they are paying market value for their share. I would recommend getting specific commercial legal advice before proceeding.

John 2 What about my self-managed super fund? My wife was a member and she has passed away.

Andrew In any super fund, the assets are held in trust for the members. When a member dies, the binding death benefit nomination determines where those assets go — that bypasses the will. If your fund no longer has a valid nomination in place for the remaining structure, you will need to review it with an adviser.

📎 See also: Legal Matters Ep 2: Enduring Power of Attorney

Caller 5 — Amanda: Body Corporate and Emergency Plumbing Costs

⚖️ Topic: Body corporate emergency repairs and liability for plumbing costs Relevant law: Body Corporate and Community Management Act 1997 (Qld)

Colin We have another caller — it is Amanda. Amanda, ask your question of Andrew.

Amanda (caller) I have a rental property. The owner underneath reported a water leak from my unit. The body corporate organised a plumber and sent me the bill — but they did not contact me first to ask if I wanted to use that plumber. Am I required to pay?

Andrew It depends on the body corporate rules, but typically there is an emergency exemption — if a leak is causing or threatening damage to another person’s property, the body corporate can call a tradesperson on an emergency basis and hold the responsible party liable. Plumbing leaks generally qualify as an emergency.

The key question on liability is: whose pipes were they? If they are common pipes serving multiple units, the body corporate pays. If they are inside your own walls for your own service, you pay. If they are someone else’s pipes in their walls that happen to affect you, that person pays. The specific facts determine who is responsible. You are entitled to write to the body corporate asking on what basis they acted and requesting them to justify the bill before you decide whether to pay.

Amanda Interestingly, I am the treasurer, and they paid a similar plumbing bill for another unit without charging that owner.

Andrew That is worth raising with them. Consistency in how the body corporate applies its rules matters, and you can ask why the treatment was different.

Closing Summary — Family Violence and the Property Settlement Percentage

⚖️ Topic: How family violence flows through to the property settlement percentage Relevant law: Family Law Act 1975 (Cth) ss 79(4), 75(2)(o)

Colin We really did not get to fully explore the trust and family violence topics today — last calls, and a brief summary?

Andrew On the property settlement: there are four elements — what is in the property pool, who contributed and how, what are the future needs of the parties, and — since 2025 — if there was family violence. When calculating the percentage split, the court now assesses what family violence occurred, how it affected the parties, and whether someone needs an adjustment accordingly. It is not just a background factor anymore; Parliament has put it directly into the Act.

Colin We will continue this discussion next week. Andrew, thank you very much.

Andrew Thank you to everyone who called in. We will talk next week.

Announcer You have been listening to Legal Matters, proudly brought to you by Bell and Senior Lawyers. Call them today for all your legal needs on (07) 5532 8777. A copy of this and past programs and all relevant resources will be available to replay or download on bellsenior.com.au and 4crb.com.

Disclaimer: This is an edited and annotated transcript of the live radio broadcast. Legal commentary and links to legislation and FAQs have been added for educational purposes and do not constitute legal advice. To hear the full unedited version, please listen to the audio file above. This transcript provides general legal information only. It is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice by contacting Bell Senior Lawyers on (07) 5532 8777.

Legal Deep Dive: Trusts and Family Violence in Property Settlements

The broadcast covered these topics in outline. The following provides the detailed legal analysis that time did not allow on air.

The Two-Stage Characterisation Test for Discretionary Trusts

The Caldwell and Caldwell [2026] FedCFamC1A 81 decision confirmed the proper sequence of analysis when a discretionary family trust is in dispute:

Key point: The Full Court held that even an unexercised power of appointment satisfies the control limb. The trust’s purpose and history cannot be used to argue it is not property — those factors only matter later when the court decides what adjustment to make.

📎 See also: How Does the Power of Appointment Affect Whether a Trust Is Treated as Property? | What Is the Two-Stage Characterisation Test for Trust Assets?

The Kennon v Kennon Test — Now in Statute

Kennon v Kennon [1997] FamCA 27 established that a course of violent conduct can justify an adjustment to contributions if it:[^1]

1. Constitutes a course of violent conduct
2. Has a discernible adverse impact on the affected party
3. Makes that party’s contributions significantly more arduous

The 2025 reforms did not replace Kennon — they extended it. Economic and financial abuse, coercive control, dowry abuse, deprivation of liberty and isolation are now expressly within the family violence definition, giving practitioners a clearer statutory basis than relying purely on the case-law line.

📎 See also: How Does Kennon v Kennon Apply to Family Violence and Property Settlements? | How Is Economic Abuse Considered in a Family Law Property Settlement?

The Legislative Framework (from 10 June 2025)

📎 See also: What Is a Domestic Violence Order in Queensland? | What Is Unlawful Deprivation of Liberty as Family Violence? | What Does Preventing Family Connections Mean as Family Violence?

Related Episodes

• Legal Matters Ep 23: Separation, Property Pools and Add-Backs
• Legal Matters Ep 22: Wills, Probate and Family Provision Claims
• Legal Matters Ep 21: De Facto and Married Property
• Legal Matters Ep 20: Property Settlement, Contributions and Will Disputes
• Legal Matters Ep 19: New E-Bike Laws and Family Law
• Legal Matters Ep 4: Blended Families

Footnotes

1. Kennon v Kennon [1997] FamCA 27, Full Court — established the three-part test for violent conduct affecting contributions. austlii.edu.au
2. Caldwell and Caldwell [2026] FedCFamC1A 81, Full Court of the Federal Circuit and Family Court of Australia, May 2026. briefonline.com.au
3. Family Law Act 1975 (Cth) ss 4AB, 79(3)–79(5), 75(2)(o), as amended by the Family Law Amendment Act 2024, effective 10 June 2025. legislation.gov.au
4. Domestic and Family Violence Protection Act 2012 (Qld) ss 8, 11, 12. legislation.qld.gov.au
5. Body Corporate and Community Management Act 1997 (Qld). legislation.qld.gov.au
6. Duties Act 2001 (Qld) — spousal exemption for family home transfers. legislation.qld.gov.au