It is common for spouses to make mirror Wills to provide for
each other and their children when they die. Often they gift their
entire estate to each other, and if they do not survive each other,
then to their children. This means that the survivor receives
everything if one of them dies, and when the second person dies,
the children of the relationship share equally in whatever is left
of their parents' joint estate.
However, unless special arrangements are put in place, the
survivor is free to change their Will after their spouse dies and
may choose not to leave the estate to the children. This can happen
if the survivor enters a new relationship or remarries, and that is
exactly what happened in the Queensland case of Haggarty v
Wood  QSC 327.
In this case, the deceased and his first wife signed mirror
Wills in May 1991, leaving their entire estate to each other and if
they did not survive each other, then equally to their son and
The deceased's wife died in 1997 and he received her entire
estate. The deceased then entered a new relationship in 2002 and
made new Wills in 2004, 2006, 2008 and 2010. The end result was the
deceased's new spouse would receive his entire estate and his
children would receive nothing.
After the deceased died, his son started proceedings. First, he
claimed that his father was unduly influenced to change his Will by
the new spouse and second, or in the alternative, he sought a
declaration from the Court to enforce a contract between his mother
and father to gift their estate in a particular way, which was
documented by the 1991 Wills.
At a hearing of the matter, the Court struck out the son's
claim. The judge determined that there was insufficient evidence to
support a claim for undue influence and that there was no agreement
between the deceased and his first wife not to revoke or change
their Wills. Therefore, the son's claim was bound to fail. The
son was also ordered to pay the new spouse's costs of the
This means that the new spouse received the deceased's
entire estate and the children received nothing. When the new
spouse dies, her Will determines where the assets will go, with no
guarantee that they will go to the deceased's children.
The only other avenues open to the children in this case are to
make a claim for provision against the estate of their father or
against the estate of the new spouse (as their step-mother) when
she dies. However, there are strict requirements in relation to
timing and eligibility to bring a claim and the process can be very
lengthy and costly. So, in many cases, a person's personal
circumstances will mean they have little chance of success, with
the added likelihood of being responsible to pay everyone's
costs if they are not successful. Therefore, it may not be
advisable for potential applicants to bring a claim.
There are specific estate planning tools that can be used to
avoid this situation and ensure the protection of your inheritance
for your children, including contracts to make mutual Wills and
testamentary trusts. If they had been used in this case, this
dispute may have been avoided.
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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