Why Have a Will – Complex Family Situations

Modern families may well involve quite complex family situations.

In the past, step-families and blended families certainly existed, usually forming when a surviving parent remarried.

However, the 21st Century propensity for divorce or simply for forming and re-forming close personal relationships (what were once called de facto relationships) with different partners throughout one’s life – some or all of which may produce children – has recently given rise to a significant increase in the number of step-families and blended families in Australia.

According to the Australian Bureau of Statistics, this increase in the number of step-families and blended families (about 50% during the past 10 years or so) means that, as a proportion of the number of couple-based families with children overall, they now represent about 10.6%.

This is before we even consider the issue of (separate) second – or even third – families. After a divorce or the break-up of a close personal relationship, both individuals may well go on to enter another marriage or form another relationship and subsequently have one or more children with their new partner.

So, we have step-families (in which a person’s new partner has become the step-parent – or the adoptive parent – of their partner’s child or children by their previous partner), or blended families (in which the partners involved in a second relationship also bring one or more of their own children to the new family, which may be a more or less formal arrangement, involving adoption or not. Then we have second or third (or even subsequent) families that may involve elements of step-families and/or blended families, but additionally bring the children of the current relationship into the picture as well.

Each of these scenarios is potentially a recipe for disaster when it comes to the dividing up of your Estate on your death.

In many family situations, particularly those involving complicated relationships, it is essential to remember that the Court may not regard your situation in the same way as you do. Even if you make a Will, unless it is seen to be fair and equitable to all the parties concerned (in this case any potential beneficiaries), both addressing those issues and any circumstances of need that the Court may regard any of those parties to be in, then the Court may look favourably on a challenge to the distribution of your Estate as set out in the Will you have put in place.

What this means is simply that, if you are seen not to have made proper and adequate provision for any of the persons eligible to make a claim on your Estate after your death, then they may challenge your Will in Court and seek to have that situation redressed. Whatever the Court does about changing or confirming the provisions of your Will (both of which it certainly has the power to do) it may also award the party or parties challenging your Will the costs they have incurred in making the challenge, and these costs are often awarded against the Estate.

People who marry later in life, having already been married and raised one or more families but for one reason or another find themselves single again, may experience a long and happy subsequent relationship. However, marriage in later life definitely has the potential to raise some complicated issues and emotions when it comes to matters of inheritance.