The Modern Family: Why a Will is so Important

Published 10 Oct 2011
Michael Witts

Significant changes have occurred to legislation in the area of ‘intestacy law’ (the situation where a person dies without having a valid Will in place).
The spouse of a person dying without a Will, where there are children of that relationship and only that relationship, is entitled to the whole estate. This is presumably on the basis that he or she will then make provision for the children of the relationship in his/her own Will in due course.
However, if the deceased person has a child or children from another relationship, then the estate is to be shared. The intestacy provisions vary greatly and will depend on whether the deceased is survived by a spouse, (including a de-facto spouse), and whether there are children of that relationship, or of another relationship, living at the time of death.
In a blended family, where each partner may have their own children from previous relationships, the distribution of the estate on intestacy is not likely to satisfy the wishes of most people involved! Therefore it is essential that people leave a Will that makes proper and adequate provision for those closest to them.
Challenging or Disputing a Will
Legislation has recently reduced the amount of time people have to make a claim against a Will to twelve (12) months from the date of death. If you feel that you have been unfairly treated by a parent or a spouse in a Will, you need to obtain legal advice promptly, put the estate on notice of your claim and ensure that your proceedings, if they are to be commenced, are commenced within the 12 month time limit. Good legal advice is essential in this area because cost penalties can apply and legal costs may be capped in small estates even if your claim is successful. For more information on challenging a Will, and advice as to whether your case is viable, contact our experienced Wills & Estate lawyer, Michael Witts, on ph 02 9682 3777.