As Gold Coast estate lawyers, we understand that in modern times, many individuals and families have complex business and personal arrangements. Some assets are held by individuals, some joint, some are owned by companies, some by trusts, and some in superannuation funds. Some of these assets cannot be effectively dealt with by a simple Will. The growth of “blended families” also raises complexities in both the drawing of a will and the administration of estates.
So called “bloodline trusts” can exclude from benefits persons who have been spouses for many years or their children. Similarly, the rise in the use of self managed superannuation funds can result in the failure of intended gifts, or a lack of appreciation that the bulk of a person’s wealth is in a structure regulated by the terms of the fund rather than what is in the will. The use of testamentary trusts can give rise to disputes. All of these matters can result in consequences which are not intended. Sometimes those consequences are unfair, and sometimes those consequences can be devastating.
Some try to work through issues by creating “mutual wills”. A typical example of a mutual will is where (say) a wife has children from a prior marriage. She wants her husband to receive her estate but then for it to go to her children after he dies. They might have very similar wills at the moment (“mirror wills”) in which they both leave their assets to each other, but then to the wife’s children if they have both passed, but there is nothing to prevent the husband from changing his will before or after his wife dies and leaving his estate to someone else – perhaps a new wife. The mutual will is designed to avoid this by having the parties contract against changing their wills without the consent of the other party, or at least notice to the other party while they have capacity to receive it. This contract can be enforced.
The problem with mutual wills in many cases is that parties do not think about (or cannot anticipate) what might happen 5, 10, or 20 years down the track. The children might be openly hostile with the surviving spouse and not deserve anything. The survivor could move on to a new relationship which could exist for 20 years but still be unable to give assets to the new spouse or children of that relationship. The typical mutual will does not take those things into account. It is our view that couples need to be independently advised about those things, and that it would be very difficult for a lawyer to act for both parties in creating mutual wills because of the risk of one party being tremendously and permanently disadvantaged. After all, it is not dissimilar to a binding financial agreement in a family law matter and lawyers cannot act for both parties in those.
Because of these matters, our Gold Coast estate lawyers are careful to consider your personal circumstances when writing a will, and will in the appropriate circumstance advise you of options which might suit your circumstances to protect your family, including:
We are Gold Coast lawyers who are familiar with these issues, have significant experience in Wills and estate administration and can help guide you in your estate planning.
Our wills and estates services include:
Whether your financial and family affairs are simple or complex, our wills and estate lawyers will be able to make sense of them and offer practical advice as to the appropriate steps to take. Our wills and estate lawyers work with your accountants or financial advisors and can recommend reputable and competent advisors if you need them, so as to arrive at a structure which avoids unnecessary complexity and cost.
For all wills and estates advice please contact Peter Muller on 5574 0575 or Jessica Murray on 5574 0111.
At QBM Lawyers we focus on delivering effective results to clients and have the management, support, and facilities to do so. We understand our clients’ aims, acknowledge their challenges and opportunities and are able to listen and respond to their commercial needs.