Simple Will Traps (Estate Planning)

Just because you have a Will does not mean that your affairs are properly in order

In today’s modern society, simply having a Will is not sufficient. Just because you have a Will does not mean that your affairs are properly in order.

When you only have a “simple” Will (usually only one page or you simply left everything to your spouse), it could mean that you are not aware of some of the hidden issues of estate planning.

In today’s society, de facto relationships and blended families are just as common as the traditional structures. These family arrangements can make estate planning more complicated, remembering that it is not the structure that makes life difficult, but a Will that does not address the issues arising from those structures.

Unless clearly specified in the Will, it may be difficult to determine whether a couple were in a de facto relationship, or were simply a couple for a limited period of time. When it comes to contesting a Will, it is legally possible for a person to have numerous partners at one time. For Example:

When Tony dies, he is living with Emma on a bona fide domestic relationship. She is known as his spouse. Tony also has a child with Gabrielle, who is also technically regarded as his spouse (as their divorce was never finalised).

Legally, this situation is acceptable, and now Tony has two parties contesting his estate. Without specific provisions outlined in a professionally drafted Will, it is likely that much of his estate will be spent in legal fees, deciding who deserves what as each of the women has a legal right to it.

When a person divorces and remarries, particularly where there are children involved, problems can often arise regarding how to provide for the current spouse, whilst also leaving something of value to the children of the first marriage - an issue that a simple Will is unequipped to deal with.

The various Family Provision legislations allow dependents to contest a Will. Not surprisingly there are many cases brought by children or spouses within blended families. Simple Wills without detailed instructions and strategies, and which may be interpreted in a number of ways, are like fuel to the fire. In order to deal with these situations, it is vital for the Will to be flexible and include structures such as testamentary trusts or insurance policies so that all parties can be looked after.

If you are in a blended family situation, you should review your estate plan very carefully to ensure that you have not unintentionally left some parties out of your Will. There is nothing worse than enduring a legal battle whilst you are supposed to be mourning for the death of a loved one.

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