Why Mutual Wills are Important – New Relationships, Children and Step-Children
When making a will, you need to ensure that you are making the right will for your family circumstances.
Often in circumstances where spouses or partners make wills together, they will have very similar terms or they will “mirror” each other. People mistakenly assume that the will created by their spouse or partner cannot be changed unless both parties agree.
This is not always the case unless a mutual will has been entered into. The general rule is that wills can be revoked or amended at any time, and you do not have to notify anyone when doing so.
For this reason, it is important that you discuss your wishes with your spouse or partner and talk through these wishes with your lawyer so that the right will can be drafted for your circumstances, and you can get advice on whether a mutual will is best for you.
A mutual will is a will that is entered into by both parties which makes a legally binding promise not to revoke the will or make wills which include terms that are less favourable to certain beneficiaries in the future. These can be really useful in family scenarios where each spouse or partner has children from prior relationships.
Without a mutual will in place, if one spouse or partner dies first, then the survivor may enter into a new relationship and change their will to either leave their estate to their new partner or wholly to their own children. This may mean that the deceased spouse or partner’s children will not inherit whatsoever.
The deceased’s children do have the option of claiming against their deceased parent’s estate at the time of death if they have not been provided for, however most children do not as they are of the presumption that they will be provided for once their step-parent passes away.
Unfortunately, the laws in relation to claiming against estates in New Zealand are rather strict. Children can only claim against their own parent’s estate if they feel that they have been inadequately provided for. They do not have the same rights in relation to a step-parent’s estate unless their step-parent has been regularly maintaining the step-child at the date of their death. For most adult children, this is not the case. Accordingly, should that child’s natural parent die first and they leave their entire estate to their spouse or partner (the child’s step-parent), potentially if mutual wills are not entered into, then the child will have no way to claim against the step-parent’s estate and will likely end up with no inheritance from their own parent.
If you are considering making a will or have a will with your spouse or partner, it is extremely important that you consider these circumstances and have discussions about what you really want to happen when you pass away to ensure that your family is protected.
We are able to provide you with great advice and can help you clearly record your intentions so that you know exactly what will happen with your assets when you pass away. Get in contact with us and we would be happy to guide you through the will making process.