When Mike Brady widowed with three sons (Greg, Peter and Bobby) and Carol Martin with her three daughters (Marcia, Jan and Cindy) married each other (both their second marriage) they became the 1970’s sitcom featuring a blended family “The Brady Bunch”. The Brady Bunch had their many ups and downs and their family dynamics were evidence that second marriages with stepchildren always raise issues which need careful consideration especially when drafting testamentary documents.
A Will maker must adjust the needs of their second partner against the needs of the children from their first relationship. When each partner brings relatively equally valued assets to a relationship, then pooling assets to share equally among all the children is a ready solution.
However, when asset equality does not exist there can be problems. The problems are further complicated when one of the couple becomes mentally frail, or dies.
There is no right way to distribute your estate when you are part of a blended family. If you decide to leave unequal shares to children and stepchildren, be sure to include a statement as to why this is being done in your Will or even leave a letter explaining as a separate document explaining why. A possible solution is that a surviving partner can receive a life interest in the deceased partner’s assets, and, on their subsequent death (or re-partnering), those assets can be directed to their own children (not their stepchildren). This becomes tricky if the surviving partner is not comfortable with a life interest situation and decides to challenge it in Court.
A Will maker should provide in their Will for their surviving partner the following: accommodation such as a house, an income stream and a lump sum or nest egg for their future.
The provision should increase to reflect a longer duration of the subsequent relationship.
Mutual Wills can be used as a binding agreement to prevent a surviving partner from changing their Will.
When planning how to distribute superannuation, ensure that you have a binding nomination so that it can be paid as you wish − if you do not have a binding nomination it may be paid by the Superannuation Trustee to a dependant partner, your children or both, in proportions decided by the Trustee – and that may not be what you want.
The take home messages are to talk frankly to your family about your Will and choose the executor wisely. It is also important to review your Will and binding death nominations regularly.
If you are part of a blended family, or if you’re wondering how to best provide for your family in your Will, contact our Wills & Estates legal team for advice and assistance.