WILLS AND BLENDED FAMILIES

Blended families are those that consist of a couple, sometimes children you have together, and typically children from previous relationships. Due to the competing interests, blended families can face unique challenges when it comes to planning for the distribution of your estate. Therefore, your Will needs to be appropriately written to reflect your particular situation.

The legislation

The Family Protection Act 1955 and the Property Relationships Act 1976 govern what happens to your property on death and can give family members the right to contest your Will.

The Family Protection Act allows family members to make a claim against the estate if they believe they have not been properly provided for in the Will.

The Property Relationships Act requires that Relationship Property be split equally between the partners. Your partner can make an application to have your estate divided as Relationship Property.  If this occurs, it may leave your loved ones with a different inheritance than you wished.

Preserving your children’s interests

In situations where you and your partner agree to do mirror wills – it can be drafted so that only on the death of the both of you, yours and your partner’s children will receive their inheritance.  However in this instance, there is no guarantee that your children will receive any inheritance after the death of your partner.   This is because your surviving partner could following your death, change their will and decide to exclude your children.

If you die without a Will, the estate will be distributed according to the law of intestate succession. The law of intestate succession may not adequately provide for your blended family or the needs of your children and stepchildren.

In those situations, the surviving spouse or partner the spouse will receive the personal items, $155,000.00, and one-third of anything else that is left. The children will receive the remaining two-thirds, divided equally between them. Whether there are any stepchildren complicates the distribution. Stepchildren are entitled to benefit depending on their age, their relationship with the deceased, and whether they relied upon the deceased financially.

To ensure the needs of your children will be provided, it is important to have a Will that specifically outlines your wishes and addresses the unique dynamics of your family situation.

Options to mitigate potential issues

Good communication: Blended families can front-foot potential issues by talking about what will happen after death. Talking about the distribution of the estate in advance means there are no surprises for the survivors usually the surviving children. If the family are all of the same understanding, then they are less likely to challenge the deceased’s wishes.

Contracting Out Agreement

A contracting out agreement allows you to make your own rules about the ownership of your and your partner’s property and how it will be divided in the future. The Will would reflect the contracting out agreement. You can find more information on our ‘Contracting out/prenuptial agreements’ linked here.

Life Interests

You can provide for your partner by giving them a life interest in your property for the rest of their life. After your partner’s death, your children will still own the house. Life interests can have conditions, such as the right for the executor of the estate to inspect the property and ensure it is in good repair, or until the surviving partner re-partners. However, a life interest can last a very long time. It is important to recognize and achieve a balance to the competing interests in the family.

Acknowledgments

This is a tool which provides the opportunity to speak from your voice and explain the reasons behind your wishes in your Will. Acknowledgments are to be held with, but not affixed to, the Will. This helps prevent claims against your Will. It is persuasive to the court and the person who was not provided for in the Will, as to the decisions you made.

The Takeaway

The above points provide an overview of some issues with blended families and Wills. There are many options when planning the distribution of your estate, but you need to keep in mind the interests and needs of those around you. Contesting a Will can be expensive, time-consuming, and stressful for the family, especially at a time of grief.

Seeking professional advice from Wakefield’s Lawyers can help navigate complex estate planning issues and ensure your arrangements align with your family’s needs and circumstances. Contact Wakefield’s Lawyers on 04 9780 3600 or email info@wakefieldslaw.com

• Elizabeth Hughes (Solicitor)