Es­tate plan­ning in blended fam­i­lies

Kapi-Mana News - - WHAT’S ON - ALAN KNOWSLEY

Any­one in a blended fam­ily sit­u­a­tion should be aware of what their obli­ga­tions might be to those left be­hind.

not have enough cash to buy out the other’s share of the home.

The sur­viv­ing part­ner may need to bring a claim un­der es­tate or re­la­tion­ship prop­erty laws, if they qual­ify, to be able to get enough as­sets to stay in their home.

A re­cent High Court case con­sid­ered a sit­u­a­tion where the de­ceased’s hus­band and his sur­viv­ing wife had been hap­pily mar­ried for 18 years, each hav­ing chil­dren from pre­vi­ous mar­riages.

About 7 years be­fore the hus­band died, the cou­ple en­tered into a for­mal Re­la­tion­ship Prop­erty Agree­ment and ex­e­cuted new Wills.

The in­ten­tion of the Agree­ment and the new Wills was that the sur­viv­ing spouse would have as much fi­nan­cial se­cu­rity as pos­si­ble.

The cou­ple in­tended to leave their re­spec­tive as­sets to each other in the event of death, with the sur­vivor’s as­sets to then be di­vided equally be­tween all of their chil­dren.

In ef­fect, the Re­la­tion­ship Prop­erty Agree­ment meant that there was very lit­tle in the de­ceased hus­band’s es­tate for his sur­viv­ing chil­dren to make a claim in re­spect of – the chil­dren would have to wait un­til the sur­viv­ing wife died to be pro­vided for.

The four adult chil­dren of the de­ceased, be­ing un­happy with that out­come, ap­plied to the court to be ap­pointed a per­sonal rep­re­sen­ta­tive of their fa­ther so that they could ap­ply to chal­lenge the Re­la­tion­ship Prop­erty Agree­ment and have it set aside.

The High Court de­clined that ap­pli­ca­tion.

As a re­sult the de­ceased hus­band’s in­ten­tions, and those of his sur­viv­ing wife, were fol­lowed – this was pos­si­ble due to their care­ful and pur­pose­ful es­tate plan­ning.

While the cou­ple in that case were able to af­fect their in­ten­tion, there are many cases in which cou­ples have ei­ther not turned their minds to th­ese mat­ters or re­ceived in­ad­e­quate ad­vice such that their in­ten­tions are not up­held fol­low­ing the death of one or both par­ties.

Any­one in a blended fam­ily sit­u­a­tion should be aware of what their obli­ga­tions might be to those left be­hind, in­clud­ing their sur­viv­ing part­ner and chil­dren.

They should also give care­ful con­sid­er­a­tion, with the ben­e­fit of ex­pert le­gal ad­vice, as to how they would like their as­sets to be dis­trib­uted in the event of death.

Sort­ing out the es­tate can be a very dif­fi­cult time for the griev­ing fam­ily. Hav­ing taken care of mat­ters with care­ful es­tate plan­ning can make that dif­fi­cult time a lit­tle less stress­ful and can also mean your wishes are car­ried out.

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