Wills – Second Relationships, Two Families
Wills – Second Relationships, Two Families
We often have to advise on drafting of wills where the person making the will has a second relationship. There are the children to consider from the first relationship, the partner in the new relationship and potentially her children, or their children from that second relationship.
Those clients frequently ask questions like:
- Do I have any obligations to my natural children from my first relationship/marriage?;
- What obligations do I have to my second partner/wife?;
- Can I do anything to stop my will being challenged?
It comes as somewhat of a surprise to many people that what they put in their will could be challenged after their death. In considering advice in this area, our responsibility is to ensure the client knows what obligations they have; who could challenge the will and on what basis.
Those obligations may arise in various ways:
- They could arise from a simple contract, i.e. an obligation to pay a debt which has not been paid during the lifetime of the willmaker, e.g. children have lent money to a parent to meet rest home costs.
- A claim by a person to whom the willmaker has made a promise and the person who has been given the promise has provided services in reliance on that promise (this is known as a Testamentary Promises action). It arises not uncommonly in a situation where a person may have gone to live with another person, usually an elderly relative, given up their own home and even career in order to look after the person and are promised that on the death of the person being cared for, the house or financial settlement would become the property of the person giving the care and services.
- Obligations under the Property (Relationships) Act. This is the legislation which usually deals with division of property in the event of separation or dissolution of marriage. However it is also relevant for couples who were happily married or together at the date of death of one. After death the surviving partner can claim the rights under the will or the rights under this legislation. If for example the wife is the owner of the house in a second relationship, and she gives a right to her husband to live in the house for the remainder of his life then the husband can elect to take the rights under the will or he can exercise his rights to bring a claim under the Property Relationships Act to get a half-share in the house if the relationship is a qualifying relationship, i.e. it has been a relationship for more than 3 years.
- Once a person exercises their option to take their rights under the Act rather than under the will, they lose the other rights that the will might give them.
- This can be a rather tricky situation to deal with if the share of relationship property is not sufficient to enable the surviving partner to buy their own house or purchase a villa in a retirement village.
- If that situation arises the surviving partner may well exercise their rights under the Property Relationships Act, i.e. take a half share in the house and then bring a claim against the estate of the deceased partner for a further share under the Family Protection Act.
- The Family Protection Act provides that the Court may change the terms of the will if the willmaker has breached the moral duty he or she had at the date of death to certain persons.
Those persons are:
- the wife or husband of the deceased.
- a de facto partner provided that partner was living in a de facto relationship with the deceased at the date of his or her death.
- the children of the deceased.
- the grandchildren of the deceased.
- the stepchildren of the deceased who were being maintained wholly or partly or were legally entitled to be maintained wholly or partly by the deceased immediately before his or her death.
- the parents of the deceased, where either:
- the parent was being maintained wholly or partly or was legally entitled to be maintained wholly or partly by the deceased immediately before his or her death; or
- at the date of the claim no wife or husband and no de facto partner of the deceased who was living in a de facto relationship with the deceased at the date of his or her death and who the Court could make an order under the Act in favour of and no child of a marriage or child of a de facto relationship of the deceased is living.
The success of any claim is of course variable depending on the circumstances of both the estate and the claimant.
Although we think we may have a right to deal with our assets as we wish, the law has qualified those rights and knowledge of these issues can be particularly relevant in second relationship situations.
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Disclaimer: This article should not be used as a substitute for legal advice tailored for your specific circumstances.