Relationships, New Relationships, and Children – Making the right Will for your circumstances

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Relationship / Family

Spouses or partners often make wills together, with similar or mirror terms.  They often assume that such wills cannot be changed and will be binding on the other spouse or partner, even if there is a change in future circumstances. This is not always the case. The general rule is that wills can be updated or changed at any time, even if they are signed together and mirror the terms of the will of their spouse or partner.

Complexities can arise

It is important that you openly discuss your expectations together, and with your lawyer, so that your wishes and expectations can be accurately recorded. If you each want wills that bind the other person to maintain the same terms, and that cannot be revoked (cancelled) or changed, then you need to ensure that each is drafted as what is known as “mutual wills”. Also, that the wills, or some other document, clearly record your intentions.

Without mutual wills in place, when one spouse or partner dies, the survivor may form a new relationship and make a new will leaving their estate to their new partner. Often spouses or partners in second relationships make wills that leave their estate to the survivor, and then, on the survivor’s death, to be divided between the couple’s respective children.  But if the wills are not mutual, the survivor can then change their will to leave the estate to their own children. Without enforceable mutual wills in place a change to the survivors will effectively disinherit the children of the first relationship, or the children of the first-deceased partner.  In these types of situations, it is important to seek specific legal advice about whether mutual wills are appropriate for your circumstances, and whether they fit with your intentions. 

Recent case law

Two recent High Court decisions have discussed the classification and enforceability of alleged mutual wills.  Both cases involved situations where will-makers had remarried, with each having adult children from previous relationships.  Each will-maker had signed wills together, leaving their estates to the surviving spouse, and then to the parties’ respective adult children.  The effect was that if the wills were complied with, the parties’ respective children would, on the death of the surviving spouse, receive a portion of a one-half share of the joint estate.

In both cases when the first spouse died, the children of that spouse did not contest their parent’s will.  They presumed that the surviving spouse would continue to honour the arrangement and maintain their existing will.  In each case, the surviving spouse went on to change their will, leaving the estate entirely to their own children, and effectively disinheriting the children of the first-deceased spouse.  In both cases the Court determined that the disputed wills were not mutual wills, and so could be updated or changed at any time.  This was because there was insufficient proof that either couple had intended to make wills that could not be changed.  The children of the first-deceased spouses therefore did not inherit from what had been their parents’ estates.

What can be done

If you are considering making a will with a spouse or partner, it is important to consider how circumstances might change, and what your intentions are, should different situations arise. Balancing different factors will help you establish whether mutual wills are the right option for you. 

Brookfields can provide tailored advice to ensure that your intentions are clearly recorded and that the interests of your spouse/partner and children are protected. Brookfields can also advise children whose parents have died in these circumstances, on the resolution of will and estate disputes.

© Brookfields Lawyers 2020.  All rights reserved

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