A common problem with blended families is the tracing of the inheritance from a parent to a step parent, writes Tindall Gask Bentley Wills and Estates Lawyer Fiona Fagan.
The natural reaction of a Will maker is to leave everything to their spouse, and then if their spouse doesn’t survive them, to their children equally. Unfortunately if you are part of a blended family the division of your estate is not as simple.
Gifting your whole estate to a step parent gives the step children no security in respect to their inheritance. Those children can never expect to receive their parent’s inheritance through the step parent. Even if the couple made identical Wills, there is nothing stopping the surviving spouse amending their Will later. More often than not the surviving spouse will amend their Will as their circumstances change. They may lose touch with their previous spouses’ children, remarry or move overseas.
Failure to recognise this in Will drafting could result in the children of the deceased spouse making a claim because they were not, and will not be, adequately provided for.
There are a number of options available to blended families which could accommodate both the spouse and the children; including a right of residence or life interest in the matrimonial home which would allow the surviving spouse to live in the property until their passing and then the property is transferred to the children.
You are not related to your step-parent. Once your parent has passed away you have no right to make a claim on your step mother or step father’s estate. (There are only very limited circumstances where a step child can make a claim on their step parent’s estate in South Australia or Western Australia).
Jointly owned property with any third party will automatically go to the surviving party upon death and will not form part of an Estate if the ownership structure is as joint tenants. So it could be that there is no estate to make a claim on.
Your inheritance from your parent will likely flow onto your step parent’s children and in this event you can not make a claim or do anything to recover your parent’s inheritance.
In order to avoid such claims being made on your estate you should seek advice from a lawyer specializing in Wills and Estates to ensure that your Will is drafted effectively.
Conversely, if you are a child of a blended family where the spouse has been left everything it is important for you to ensure your claim is made immediately after your parent’s passing if a claim can be made. A Family Provision claim must be made within six months from the date of the Grant of the Probate or Letters of Administration. The court may grant an extension of time depending on the reasons for the delay and other factors.
Fiona Fagan can assist Will makers to understand their obligation to their children and their current spouses and assist claimants to make a claim on their parent’s estate.
For further information or legal assistance contact your nearest TGB office.