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A will for blended families should address the needs of children from previous relationships, stepchildren, and children from the current marriage/relationship. The primary aim of a blended family will is to provide clarity and fairness in the entire estate distribution, minimising the potential for misunderstandings or disputes among family members after the individual’s passing.

Playing Fair:
Making sure everyone you care about gets a fair share of your property after you die is an issue most people grapple with. This can cause additional complications when you have a blended family. One of the difficulties we often see is how to balance your obligations to children from a prior relationship and those of your children to your current partner.

It is not as easy as just writing your will and specifying who gets what. There are several statutes that give family members and/or your new partner’s family, a right to contest your will. The two main statutes are the Family Protection Act 1955 and the Property (Relationships) Act 1976.

Ownership Structure:
When family relationships are complex, it is important to have clear, and effective ownership of property.

If you are looking to purchase a property and you or your partner have children from previous relationships, it is important to ensure you have framework in place to protect your assets for your children. A contracting out agreement will best provide this but the ownership structure of your assets is also important. When you purchase property with another person you can own the property jointly or as tenants in common.

Joint Tenants:
Ordinarily a couple would purchase a property jointly. If a contracting out agreement is not entered into and one of the couple passes away the other will receive the property by survivorship, this means that the property (and the deceased’s half share) does not form part of their estate and is not dealt with in their will. Most of the time real estate is a person’s largest asset so this can present problems for estate administration.

Tenants In Common:
Contrary to owning property jointly, owning property as tenants in common allows your will to deal with your share of the property however you wish. This includes provision for giving your spouse or partner a life interest in the property so that they can continue to reside in the property for the rest of their life. Upon the expiration of the life interest the property can be sold and the estate’s share of the sale proceeds paid to the estate for distribution in terms of the will.

Property (Relationships Act) 1976 (“PRA”)
The PRA allows your partner to make an application to have your estate divided as relationship property, rather than in accordance with your will. Under current law, you have a duty to provide for the partner you leave behind.

If an application is made under the PRA, any relationship property is divided accordingly and the balance of the estate is distributed according to your wishes. This might leave your loved ones with a different portion than you envisaged.

Contracting Out Agreement:
A possible solution is you come to an agreement with your partner which overrides the PRA and enter into a contracting out agreement.

Family Protection Act 1955 (FPA)
The FPA allows family members to make a claim against your estate if they believe that they have not been properly provided for.

The above points merely brush over some issues in what is a complex area of law. If you are in a blended family situation, you are likely to face unique challenges when it comes to estate planning and we recommend that you seek legal advice on your particular circumstances.

Contact Hamertons Lawyers Limited by clicking HERE.