Structuring for the Blended Family Estate - a series of 5 on demand video webinars

Program 1: Is the Feeling Mutual? Will Drafting for Blended Families

Drafting wills for clients entering into or in second or third marriages can be challenging, particularly when there are children from prior marriages as well as the current marriage. This session takes a deep dive into what will drafters need to consider in these complicated family situations, including:

• How should a will be structured to take into account the varying needs of a blended family?
• The problem with mirror wills – the potential actions of the surviving spouse
• Is a mutual will agreement a solution?
• What should be in a mutual will agreement?
• Can a mutual will agreement survive subsequent life events?
• What remedy do affected beneficiaries have for breach of a mutual will agreement? Are there any time limits on seeking a remedy?
• Establishing one or more discretionary testamentary trusts and options for differing treatment of beneficiaries in a blended family
• Other drafting tips including:

• allocation of specific gifts and heirlooms
• guardianship appointment for minor children
• statements concerning estranged children or others left out of an inheritance

• The importance of regular will reviews and the benefits of disclosure of proposed arrangements to the family

Program 2: All for One and One for All: Discretionary Trust Establishment for the Family Business in Blended Families

A trust can be a very useful vehicle for managing relationships and outcomes between members of a blended family when it comes to running a family business. This session will provide a detailed guide to setting up a trust that takes into account complex needs and that can weather stormy relationships and generational challenges, including:

• What to look for in determining when a discretionary trust is an advantageous arrangement
• Identifying assets to go into the trust and examples where multiple trusts might be appropriate
• Key deed terms to consider
• Selecting the trustee and appointor and ongoing control after retirement or death
• Valuing the business assets in the context of contribution and wider family circumstances
• Assessing shareholdings, allocations and benefits of members
• Anticipating levels of involvement in the family business over time and equalizing the benefits of those less involved
• Appointment of managers and decision-makers and other mechanisms in a blended family dynamic
• Dispute resolution processes
• Planning for when the business relationship or trust ends

Program 3: Lessons from the Courts in Family Provision Claims in Blended Families

Concerned that their inheritance is at risk from second or subsequent relationships, children of first marriages are increasingly turning to the courts for protection and for a greater share of their biological parent’s estate. This session will provide an insight into current trends and lessons from the courts in these matters, including:

• Eligibility of step-children to make a claim and jurisdictional differences
• Can step-children in de facto relationships make a family provision claim: Scott-Mackenzie v Bail [2017] VSCA 108
• Can step-grandchildren make a claim?
• When should a claim be made? Upon the death of the parent or the later death of a step-parent? Haertsch v Whiteway [2020] NSWSC 133
• Time limits for making a claim
• What factors will the courts take into account in determining a claim in a blended family situation?
• The importance of pre-planning and agreements: Lowe v Lowe (No 2) [2015] NSWSC 16
• Will a claim in equity have a better chance of success?
• Recent cases and examples
• Tips for avoiding and minimising family provision claims in blended families.

Program 4: Protecting the House for the Spouse in a Blended Family

Planning in blended families takes on its most difficult form when it comes to the family home. This session will examine the options for future planning for when one partner dies leaving a second or later spouse or family living in the most valuable asset of the deceased’s estate, including:

• The value of being on title
• Life interests – the benefits and disadvantages
• How is a life interest created?
• Should any limitations or restrictions be placed on a life interest?
• How can a life interest take aging and health into account?
• Characteristics of a right to reside
• What conditions can be attached to a right to reside?
• How is the occupier restricted in their use of the property?
• When does a right to reside cease?
• Financial and taxation consequences of life interests and rights to reside
• Using a testamentary trust as a vehicle for a life interest and right to occupy
• Can a life interest or right to reside be challenged? Cases and examples

Program 5: Wish Me Luck When You Wave Me Goodbye: Aged Care Separation in Blended Families

Significant legal issues can arise when one parent in a blended family goes into residential aged care, leaving a later spouse and children in the family home. This session will consider the implications of this move and provide advice on what strategies need to be considered to manage this process, including:

• Does a relationship end when one partner moves into aged care?
• What are the rights and options for the partner remaining in the family home, particularly if they are not the asset owner?
• Does residency of one partner in aged care constitute “separation” for family law even if it is involuntary? Stanford Stanford [2012] HCA 52
• Can a court make property and other orders under these circumstances? What considerations will be taken into account?
• What is the situation if the party in care has dementia?
• What is the impact of aged care separation on de facto partners? In the Estate of HRA Deceased [2021] QSC 29
• Planning strategies for blended families in the event of an involuntary separation.