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VIC De Facto Relationship - Revising Wills?

Discussion in 'Wills and Estate Planning Law Forum' started by Sue_1958, 7 May 2015.

  1. Sue_1958

    Sue_1958 Member

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    Hi. My partner and I have to revise our wills, and I would like some help before going to a solicitor.

    We are both divorced, and have been living in a de facto relationship for the past 8 years. The house we live in is mine - I am solely paying off the mortgage, and all bills associated with it are in my name. He has a house that he is paying the mortgage on, in which two of his adult children live paying nominal rent. Both mortgages should be paid off within the next few years, and we are both looking at 10 years until retirement. He has 4 children and I have 2 - all are adults.

    I also have substantial superannuation, and currently have 4 investment properties, one of which I have purchased for my daughter to live in, paying market rent. The super is split 40/40/20 between my children and partner. My partner does not have much super but has one investment property.

    I would like to structure the wills separately. I don't want his children to have any claim on my estate, but i am concerned that there may be some case because of the time that we will have been together. He should be able to stay in the house we currently live in as long as he likes, but should have no claim on it once he moves out, unless I think that he should have a proportion of the proceeds when my kids sell it. I want to be fair to him because of our years together but I don't want his kids to be able to get anything from me.

    Any help or issues that you can see might cause problems?

    Thanks
     
  2. bluetongue

    bluetongue Well-Known Member

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    Consider mutual Wills so that the allocation of assets to your partner, his children and your children are effectively protected by the contractual nature of the mutual Will. You may also to wish to consider a life estate for your partner whilst living in your house. If your children are left your super, consider the tax implications of them receiving the superannuation when compared to your partner who may not be required to pay any tax. Without knowing the details about parental care, asset ownership, etc, it is difficult to give you general advice and this is probably best left to your estate planner/solicitor.
     
  3. Sue_1958

    Sue_1958 Member

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    Thanks, just wanted to get a general idea before we go to a solicitor. We didn't start living together until all kids were out of our care and adults. My house, investment properties and superannuation is all in my name and I want my kids to benefit from my hard work, not his. On the other hand, they are entitled to his house/investment property/super which is all in his name. I just want to make sure that if I leave any part of my estate to my partner, it cannot be then passed on to his children, if that makes sense.
     
  4. Tim W

    Tim W Lawyer

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    1. In this post, I am assuming that you don't have any children together.

    2. In lawyer-speak, what you are looking to do is draft a will that is
      as resistant as possible to a Family Provision Claim by any of your partner's own children.
      (making this kind of arrangement is pretty common)

    3. Your superannuation is not actually part of your estate.
      That means that it's not an asset that you can bequeath in the same way that you would a object like a car or a dining suite.
      That's because the managers of your super fund probably hold it as a trustee (that's how most super works).
      But you can leave instructions for the fund manager about what to do with it (you sometimes here this called "nominating beneficiaries").
      Talk to the fund manager.

    4. Bear in mind that there may be a Life Insurance product attached to your super.
      There may also be one attached to your credit card(s), or to other financial products.
      It may be appropriate (even necessary) to leave specific instructions about who the beneficiary of that/ those should be.

    5. You have a substantial estate.
      You may find it prudent to make separate provisions in your will for your home
      (what the ATO calls your "Principal Place of Residence") and the rest of your assets,
      with particular reference to the premises occupied by your daughter.

      This can (but does not have to) include things like a Life Estate for your partner in your current home.
      It's not a bad idea, but may not suit how your descendants feel about your partner, or your assets,
      once you are gone.

    6. Any asset that you leave to your partner becomes his to bequeath as he wishes.
      But there are ways to manage that, even from beyond the grave.
      Ask your solicitor about the suitability of a testamentary trust.

    7. At the same time as you make your will, consider appointing an Enduring Guardian and an Enduring Power of Attorney.
      This does not have to be your partner - it could, for example, be your one of your adult children, or a friend or other relative.
      Appointing these offices is a pretty big decision in it's own right, and should be the subject of a substantial discussion with your solicitor.

    8. You are not obliged to appoint a relative as an executor, nor are you obliged to appoint your partner.
      You may find it convenient to appoint a solicitor as executor (many people do) - maybe even a different one to your partner's.

    9. Perhaps the solution in your case is to go and see your own solicitor.
      Or, at least, see the same solicitor at a different time to your partner
      (and I don't mean one-appointment-after-the-other).
     
    Sue_1958 likes this.
  5. Sue_1958

    Sue_1958 Member

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    Thanks Tim
    I think you may be right. Last time we went together to do our wills, this time I think it may be better to go separately.
    Sue
     

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