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Wills And Blended Families
Rising divorce rates have complicated relationships — and the process of dividing assets between children, de factos and former partners.
Legislation enacted inVictoriacan overturn the provisions of a will if the claimant can show that:
- a legal or moral obligation arises from the deceased; and
- where there is evidence of financial need.
To cater for this, it is appropriate to draw a will in such a way that the surviving partner is able to occupy the family home until such time as the first of certain events occurs. Typically these events are:
- if they wish to leave;
- if they get remarried; or
- if they die.
In this event, they have a “lifetime” interest subject to these caveats.
If a child or a dependant wishes to claim a portion or a greater portion from a deceased estate then the rights are assessed under the Family Provision Act and the value of the assets and needs of the parties to the claim will be assessed.
Eligibility of claims under the legislation depends on a “moral or legal obligation” of the deceased to the claimant. Therefore, the issue for a surviving partner or child is one of needs.
There is no hard and fast rule and every case is assessed on its merits.
The courts have a tendency to find that de facto spouses have recognisable claims to a deceased estate.