The number of marriage breakdowns ending in divorce has been increasing over many years. Some

authorities put the likelihood of a first marriage failing at one in three; this likelihood increases with

second and subsequent marriages to one in two.

Frequently married couples make “mirror wills” where each leaves everything they have to each

other, and the last of the couple to die leaves the estate to the children of the marriage. Second

marriages complicate the situation faced by a testator who has children from a first marriage to

consider as well as the expectations of a spouse.

The situation some people find themselves in is where their parent is the first to die, the stepparent

then makes a new will, leaving their estate (which may include assets brought to the marriage by the

deceased partner) to their own relations and not to the partner’s children. A further complicating

factor can be that the assets are owned jointly and pass straight to the surviving spouse without

forming part of the deceased estate.

A stepchild is an eligible claimant for further provision in all jurisdictions of Australia. The courts

have taken account of the origin of the assets of the surviving partner and have made provision for

the stepchildren where the stepparent benefitted from assets brought into the marriage by the

deceased’s first partner.

In circumstances where there had been an agreement between the spouses regarding the

disposition of the estate, of which the children were aware, and from which the surviving spouse

departs, the court has also held that further provision should be made.

However, where second marriages end in divorce, usually the eligibility of a stepchild to claim

against the estate of a stepparent ceases too. Once the blood relation has died, the stepchild has no

claim on the estate of the stepparent.

Although it is unusual, the couple could make mutual Wills that prohibit either of them changing

their mirror Wills. This will give a remedy to any step-child who loses out if the survivor changes

their Will.

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Comments by Wills & Estate Specialist – Terry Johansson

It is always worth a phone call to a lawyer to get advice on your position- because every case is

different. CWPL has the expertise to carefully analyse the facts and apply the law in each jurisdiction,

whether in Australia or overseas.

Terry Johansson and the CWPL team is up to date on the latest cases in this area and will be able to

advise in detail on your particular circumstances.

00683.6/21198/AL/JJ/201-/AU/C/XXX/- /FAS/QL/?