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IF YOU DIE BEFORE YOUR SPOUSE - IS YOUR CHILDREN'S INHERITANCE PROTECTED?

Tue, 10 Sep 2019

IF YOU DIE BEFORE YOUR SPOUSE - IS YOUR CHILDREN'S INHERITANCE PROTECTED?

Following on from last month’s article regarding mutual/mirror wills, our Gold Coast lawyers wanted to drill down and provide some further information in this area, so that our clients have a better understanding of the process, and what can (and often does) go wrong when proper and thorough estate planning is not carried out.

There is an ever increasing number of blended families, and with this increase, comes a wider range of issues that need to be contemplated when undertaking estate planning. Whilst even the most detailed estate plan cannot pre-empt the vagaries of life, what it can do is alert you to a range of issues that could crop up, and allow you to be fully appraised of the various options and avenues that may be available to you in the event that they do arise.  

As noted previously, it is quite common for partners to have their wills drawn up leaving their estate to each other if they were to pass away, and then to their children, thinking that this will keep their estate in the family and that their children will be looked after.

However, as our recent article highlighted, if your will was drawn up in this way and you were to pass away before your spouse, leaving your entire estate to them, there is a possibility that your spouse could re-partner, and draw a new will leaving their estate (which includes the entirety of your estate) to their new partner or spouse. This means that if they were to pass away your children may not get anything without having to commence a Family Provision Application which is an expensive and lengthy process with no guaranteed outcome.

This situation may be easier to understand in diagram format:

 

 

As noted above, there may be avenues available to children in these circumstances to make a claim for provision against the estate, however there are strict timing and eligibility issues which need to be satisfied, and the process can be expensive and drawn out.

In a 2013 Supreme Court case, mirror wills were executed by the deceased and his first wife, leaving their entire estate firstly to each other, and if they did not survive, then equally to their children.  However, after receiving the entire estate upon his wife's death, the remaining spouse entered into a new relationship and made a new will which left his entire estate to his new spouse and nothing to the children.

After he passed away, his son commenced proceedings amongst other things, seeking a declaration from the Court to enforce the original wills made by the parties which stated that after both passed away, the estate was to go equally to the two children of the marriage.

However, the Court struck out his claim and determined that there was no agreement between the deceased and his first wife not to change or revoke their wills, so unfortunately, the son missed out on receiving any inheritence.

Forewarned is forearmed, or so they say, and it is for this reason that our experienced wills and estate lawyers in our Runaway Bay office want to raise awareness of these types of situations, and work with our clients to arrive at a solution which takes into account all of your individual circumstances and requirements to ensure that your testamentary intentions are accurately documented.

To discuss your  individual estate planning needs or if you require assistance in the administration of an Estate, please do not hesitate to contact our Gold Coast team on (07) 5563 8970 or email us at admin@affinitylawyers.com.au.

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