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Blended Families and Mutual Wills

I recently spoke at an educational seminar run by the Institute of Public Accountants. An interesting discussion evolved about estate planning for blended families and what controls can be implemented to ensure that a Willmaker’s wishes are carried out.

Blended Families

Blended families arise where a couple enters into a relationship and one, or both of them, have children from pre-existing relationships.  Willmakers in this instance often want to leave all of their assets to each other in the event that one passes away, but they also wish to ensure that their respective children benefit from their estate after the surviving spouse passes away.

Without specific strategies in place, there is the risk that the surviving spouse could change their Will and leave everything in their estate to their own children.  One way to manage this risk is to have mutual Wills.

Mutual Wills

Some key matters to be taken into account when considering mutual Wills include:

  1. A mutual Will exists when each spouse agree to leave his/her property to the survivor of the 2 of them, and then that survivor is to leave the property to the beneficiaries that have been mutually agreed – usually a child or children of both husband and wife (including children from previous relationships);
  2. A constructive trust actually arises in a true mutual Will;
  3. A Court must be satisfied that a constructive trust arises, and it is the constructive trust that beneficiaries can enforce;
  4. A Court must be satisfied that there was an agreement between the 2 parties not to revoke the Will without the knowledge of the other;
  5. An agreement to make mutual Wills is revocable by one party giving notice to the other of their intention to revoke the Will;
  6. Revocation of a Will by re-marriage does not impact on the constructive trust that is created in mutual Will.  Divorce does however free the surviving spouse from any obligation;
  7. A mutual Will does not stop a beneficiary from making a family provision application if they have been left out of the Will;
  8. A family provision application can still be made after the death of the first party to the agreement.

It is imperative to obtain qualified and experienced advice or in considering preparing mutual Wills, as a number of considerations need to be discussed and thought through before the Wills can be properly implemented, and the risk properly managed.  Please do not hesitate to contact me if you would like to discuss or enquire about mutual Wills.

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The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

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Chloe Kopilovic

Written by—

Chloe Kopilovic

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