FREE READ: Til Aged Care Do We Part Later In Life Relationships And The Estate Plan

Subject: Succession Law CPD, Estate Planning CPD
Author: Justine Taylor & Daniel Bennett, Uther Webster & Evans

Every family and every relationship has its own nuances and subtleties that need to be individually catered for. This is particularly so when dealing with later in life relationships and blended families when viewed through, not only the estate planning lens, but also when appropriately advising on family law rights.

As Dixon J (of the Supreme Court of Victoria) observed in the context of legislation providing that marriage will revoke a prior will unless made in contemplation of marriage1 in Steel v Ifrah [2013] 199; 38 VR 19:2

   “Marriage is an event that it is commonly understood to naturally affect a testator’s intentions about the distribution of his or her estate after death. Undoubtedly, the changing mores of Australian society concerning marriage, divorce, children, blended families and the holding and distribution of wealth and assets motivated the reform, in 1997, of the marriage revocation rule. Where once it might have been expected that a marriage would result in an intention not to distribute to the beneficiaries that had been selected prior to a marriage in order to favour the new husband or wife and the children of the union, the legislature considers it unsafe for the law to now make that assumption. An expectation of a second marriage, or a marriage following a union that resulted in children, may result in an intention to protect the entitlement of the children of that former union, rather than an intention to recognise the claims of or through a new marriage partner. What is important is that there be contemplation of a marriage when determining how, and to whom, one’s estate is to be distributed, because it is the making of a will without contemplation of the relevant circumstances that may apply when it comes into effect that is the mischief”.

This paper will be taking a cross jurisdictional and collaborative approach to specifically look at later in life relationships in drafting binding financial agreements, Wills and the estate plan, to specifically cater for blended families, subsequent marriages and/or later in life relationships.