In our previous post (Common Estate Planning Traps – Part 1) we mentioned 3 common traps involved in estate planning;
- Getting tangled in the family law tentacles
- Not allowing for flexibility with your binding death benefit nomination
- Paying unnecessary fees due to incomplete tasks by your firm.
Below we address three more common mistakes and how Owen Hodge Lawyers avoids them.
4. The survivor in a couple changing the will after the first spouse passes away.
As above, estate planning for blended families with children from two or three separate unions can be quite a difficult area to navigate.
A client of ours requested a single item, her late mother’s cut glass vases. She made this request known to her stepmother once her mother had passed away. Her stepmother and her father had promised the children of both relationships that the estate would be divided equally on the death of the second spouse.
However, not long after the father passed away, the (wicked) stepmother changed her will, leaving our client out in the cold, simply because she didn’t like her. Luckily, our client had the full support of Owen Hodge Lawyers and received not only the cut glass vases but her full share of the estate.
5. Not recording proof of cognition when writing your Will.
A particularly tricky part of estate planning is when the children contest their parents will. A single case alone can fill three or four A4 binders with documents and correspondence!
Often, children will contest the will on the basis that their parents were not of sound mind when creating the legal document, and query whether the parent in question understood that they were making a will and whether they had sufficient cognitive ability or capacity to make a will.
A qualified estate lawyer will always ensure, especially for older clients, that the client is cognitively tested and that full and sufficient file notes are retained.
6. Putting off creating a will before things got messy.
Another more difficult area of law is when a couple have been separated for a number of years, however, they have never properly divorced and never made a will.
A case that reflects this is one of Carol and Bob. Carol and Bob had been separated for nearly 28 years, but Carol had not made a will nor divorced her husband. To further complicate this case, Bob had been in a same-sex relationship for over 22 years.
In the eyes of the law, this case is very messy. Under the Intestacy provisions of the Succession Act 2006, a person can have two spouses for the purpose of a Family Provision claim.
This is why we at Owen Hodge Lawyers always recommend that upon separation, a new will is to be created immediately. While section 13 of the Succession Act 2006 does give some level of protection against the estate passing to the former spouse on divorce, it is preferable that a new will and other associated documents be prepared as soon as possible.
These common traps and related advice was written by our wills and estate expert
Dr Mal Stoddart. If you require legal assistance in relation to your estate planning or would like more information about these issues please contact
Owen Hodge Lawyers on 1800 770 780.
