Couples with blended families have unique considerations when preparing a will

Both my spouse and I have children from previous relationships. How do we ensure there are no disputes over our estate after we die?

Unfortunately, blended family disputes over wills and estates are on the increase. This is a result of more relationships dissolving (due to separation, divorce or the death of a partner) and many people moving on to new relationships - often forming a blended family in the process, of which there are several types:

A couple, each of whom have one or more children from a previous relationship – but no natural or adopted children together; or
A couple where one partner has one or more children from a previous relationship – and at least one other natural or adopted child together.

There has also been an increase in grandparent-led families, and the emergence of families parented by lesbian, gay, bisexual, transgender or intersex couples.

Ways for testators to avoid disputes is to restructure their financial affairs, sort out ownership of assets and discuss with blended family members what they can expect from their estate.

Traditionally, a couple have made wills that gives each person’s interest in the family home and other assets – to each other. Upon the death of the surviving partner, the combined estates of both families are split between all children. However, there is a risk that after one partner dies the surviving partner changes his or her will to benefit only their children. This can be prevented with a “mutual wills agreement” that cannot be altered.

Alternatively, the will of the deceased spouse can establish a trust over the assets. This puts in place mechanisms for protecting children of a previous relationship whilst providing for the needs of the current spouse – such as an ongoing income.

Chantelle Moore
Solicitor
Wills & Estates | Family Law | Commercial Law
cmoore@scammell.com.au

*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.

Beware the token Will provision for family members

I have heard that leaving my son a dollar in my Will prevents him from contesting my estate. Is this true?

It is a commonly held belief that if you have a legally drafted Will which includes a token provision for a family member, then that person can’t bring a claim against the estate. This is not the case.

Even though you have left your son a legacy in your Will, your son is still entitled to make a claim against your estate as an eligible family member under the South Australian Inheritance (Family Provision) Act 1972. Your son will have six months from the date that Probate is granted in which to make such a claim, noting that the Court may grant an extension of this timeframe.

If your son chooses to make a claim he will need to establish that he has not been adequately provided for. The Court will consider whether this is the case taking into account circumstances of the family dynamics, the estate assets and the individual circumstances of the person making the claim, including his proper maintenance, education or advancement in life.

The Court may refuse to make an order in favour of your son on the grounds that his character or conduct disentitles him to an increased benefit from your estate.

An experienced Wills & Estate Planning solicitor can assist with strategies to mitigate the possibility of a claim being made on your estate. These may include asset structures, binding superannuation nominations and advice on what constitutes “adequate provision” to the family member involved.

*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.