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Where there’s a home-made will, there’s no clear way!

Warren Wackerling – 20 January 2015

Introduction

In February 2012, an elderly man died leaving his second wife survive him and each of them respectively had children from previous relationships. 

It’s not an uncommon scenario, commonly referred to as a ‘blended family’.  Estate planning for a blended family can add new dimensions of who gets what.  In this case, not only was there a blended family, but also property held by the deceased and his then wife as joint tenants which was another complexity in the estate administration.

Facts

In the case of this elderly man dying in 2012, he and his then wife prior to his death chose to make their own wills using a do-it-yourself will kit.  In making their wills, they overlooked the complexities of a blended family and jointly held assets, including how to be certain that each of them upheld their joint intentions after one of them died. 

A common concern is how can one be assured that the survivor won’t change their will to gift it all to the children of the surviving spouse to the exclusion of the children of the deceased?  Try putting that in your own words effectively into a do-it-yourself will kit!  The wording the deceased used in this case appears in the decision.

Mutual wills is one way of achieving this outcome.  In making his and his wife’s will, this man had not contemplated mutual wills, but instead he and his wife used their own words.  Fortunately, the Supreme Court of Queensland ruled after costly proceedings to the estate, that there could be interpreted an intent to make mutual wills and the result was the will makers’ intentions were carried out. 

The outcome determined by the Court in December 2014, more than two and one-half years after death, could have been drastically different at the expense of the surviving families.

What do I need to be careful about?

The availability of ‘do it yourself’ will making kits can be tempting but does not always provide the answers to the more serious issues around making mutual wills, jointly held assets and contemplating the possibility that your joint intentions now may change after one party’s death.

Download the decision here.

This article is for general information only and should not be relied upon as a substitute for specific legal advice.