Fisky Business: Second marriages, Wills and planning estates

It was the final episode of season 2 of Fisk this week, and the big story (apart from Helen’s switch to a pinstripe blue suit!) was her clients the Buntings, a couple with a significant age gap. David (the older of the two) is drafting his Will but plans to leave everything to his younger wife, Jess. When it’s suggested that she also draft her Will, she declines, saying she’s “too young”.  

Helen tries to explain the risks of this, but there is a lot more to unpack – we asked one of our resident Wills and Estates lawyers Kerrie Wood to explain how this all works. 

Helen explains that if she dies intestate (without a Will) that it could become complex – can you explain why that is, and what the risks are?

When you die without a Will, you are considered to have died intestate. When this happens, the deceased’s wishes (that they may have expressed before death) won’t be recognised, and instead the person’s estate is distributed according to the laws of the state they’re in.

In Queensland, under the intestacy provisions, a spouse to the deceased will be entitled to the first $150,000 and any moveable property (things like furniture and personal items) of the estate and then - depending on how many children the deceased had - a portion of the residuary estate (everything else).  If there is no spouse, the deceased’s children will inherit in equal share.  It is also important to note that step-children are not automatic beneficiaries of an intestate estate.

So, in the Fisk case, if David were to pass away first and leave everything to his wife, and then she also passed away without a Will, her child with David would be the sole beneficiary of her estate. This means his children from a prior relationship would not be automatically entitled.  David’s children could bring a claim against the estate, however these legal proceedings can be expensive and lengthy.  

As you have mentioned, we find out that David has children from a past relationship, who may not receive the inheritance he wants distributed to them if he doesn’t make a provision in his Will. Is this something you see when people remarry?

Unfortunately, this is something we see often in practice.  The most common scenario is when a couple marry and bring children from prior relationships.  It is common practice for them to make “mirror wills”, where they leave their respective estates to each other, and when the surviving spouse passes away, the estate passes equally to their combined children.

What often happens is that when the first spouse passes away, the surviving spouse makes a new Will that leaves the estate entirely to their children, and excludes the deceased spouse’s children.

The children who have been excluded do have the ability to bring a claim against their step-parent’s estate for further provision (money). But they would have to demonstrate a need for this, which can be difficult to do, particularly in cases where the excluded children are in a comfortable financial position. 

What is your advice for people remarrying, especially when there are children from different relationships?

If you are remarrying and are bringing children from prior relationships into the marriage, we highly recommend you visit an experienced estate planning lawyer for advice on how to protect your assets for your children.  Unfortunately, you cannot always trust that your spouse is going to do the right thing when you’re gone.

In the Fisk episode, the disgruntled client makes reference to Fisk saying that everyone is going to die and we don’t know when, that none of us do. While it might sound dark in normal conversation, for Wills and Estates Lawyers this is just part of the standard conversations with clients. Planning for the unknown can be hard – what are the main reasons for younger people to start thinking about writing their Will?

This is absolutely part of a normal conversation for Wills and Estates Lawyers and it is an important discussion for people to have - young and old!

Ageing is not a privilege we all have, and the reality is that we don’t know what is around the corner sadly, tragedy can strike anyone.  It is so important to have a will in place so that you have control over your estate. 

The scenario we see most often is when a young person starts living with someone and the relationship could be considered a defacto relationship, even if there is no real intention by either party for this to be a long term relationship.

If they were to die without a Will, it is likely the surviving person would benefit from the entirety of their estate, as the defacto spouse, when the reality is the deceased may have preferred their parents, siblings or cousins to have received the inheritance. 

Whilst a young person may not think they have assets, often life insurance and superannuation payouts can quickly result in a significant estate.

That’s it for another season of Fisk recaps! Thanks for reading.

_{Disclaimer: This content is not endorsed by the ABC and Maurice Blackburn has no association with the ABC. Views and legal commentary are our own.}