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Protecting your child’s inheritance in the event your spouse survives you

Updated: Dec 15, 2020

For many couples with children, the concept of making a will is driven by a desire to plan and provide for your loved ones in the event you pass away. Typically, this involves partners making an identical will where they leave their estate to each other or under tragic circumstances, to their surviving children.

But what happens if your surviving spouse enters into a new relationship after you pass away and changes their will? What happens if their new spouse survives them and how does this affect your child’s inheritance?

The truth is, if you have made an identical will with your spouse, the protection of your child’s inheritance could be at risk.

In the Queensland case of Haggarty v Wood [2013] QSC 327, a scenario played out where a surviving spouse changed their will leaving his entire estate to his new spouse and nothing to his children. Following his death, his son claimed that changes to his father’s will were unduly influenced by his new spouse, however, insufficient evidence including no agreement between his father and first spouse (mother) not to change or revoke the will, meant that he did not win the case.

The sensitive and uncertain nature of life and relationships means that often, couples don’t think about the impact of different scenarios playing out, how their will might be interpreted or how changes later in life could alter their original intentions.

So, what practical steps can you take when planning to protect your child’s inheritance in your will?

  • When making or updating your will, talk with your spouse if you feel comfortable. Share your wishes in the event you pass away first and discuss making provisions in your will to ensure your wishes are honoured.

  • Talk with your lawyer about your concerns and wishes with protecting your child’s inheritance. If not prompted, ask them what will happen with your estate if you pass away before your spouse and they remarry; if your child gets divorced or leaves a de facto relationship and any other scenarios that could impact the beneficiaries of your estate.

  • With your lawyer, explore the most appropriate options for protecting your child’s inheritance in your will. This might include a contract to make a mutual will or a testamentary trust.

Remember, everybody’s personal and relationship circumstances are different. Sitting down with a lawyer and getting tailored, personal advice can help you to make a more informed decision.

Do you need some help with your will? Get in touch Noel and Jeremy on (07) 4632 0480 or send an enquiry via our online form.

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