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Mixed families cause will headache

We are now in a society where mixed families are commonplace – two separate parents bringing together children from previous marriages and creating one blended family.

However common this is becoming, it can cause some problems after death as some children or family members are included and others are not in the will.

This was exactly the case in a recent example from the NSW Supreme Court.

Two parents married and created mutual wills – each giving their estates to the other one should they die separately and, in default, dividing it equally between their children.

Each parent had two children from a previous relationship and they also had one child together. However, when the wife died earlier last year, none of the siblings received anything under the will.

It is important to note they were all still equal beneficiaries under the husband’s will.

This will was contested by one of the siblings as they other four understood that once both parents died, they would receive provision.

The court stated that although the siblings were aware of the proceedings against their father/step-father, they did not wish to participate in the proceedings.

However, one child that contested the will sought clarification to whether provisions should be made available to them to help create a suitable amount of superannuation for their retirement. They were also in financial difficulty and would benefit from the court giving them access to the estate.

According to court documents, the Judge was satisfied that adequate provision had been made for this individual. It stated that even if they found they weren’t given proper provision – the court would not order it for them and the case was dismissed.

In essence, the case was dismissed for a number of reasons.

Firstly, the will was legal and gave her husband the sole responsibility of the estate. This is an adequate request and the court must obey her wishes.

Secondly, the child who contested the will is still part of the will, however, at this stage, they are not eligible for provision. When the husband dies, the estate will be split five ways between all of the children and not before.

Important notes

For mixed families, it is vital for all members to be kept in discussions regarding wills and estates. They can be complex especially if there are step-parents and step-children to consider.

While some contested wills can’t be avoided, open communication lines can ensure everyone is aware of the circumstances before a death.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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