VIC Drafting a Will - De Facto Relationship & Children from Previous Marriage

[RebeccaT]

Good morning, I have a query regarding the drafting of a Will. A quick background - I live with my partner (of 4 years) and my 2 children (from another relationship) We have recently bought a house together where I provided the entire deposit. My partner and I now equally share the mortgage repayments. While we both have income protection, I am the only one who has life insurance and this would payout the mortgage if I was to die.
We want to draft our own Wills (both having incurred large family law costs in the past)

We would each have a Will, making each other Executors of our respective Wills. We are keen to know how to dispense our estate. My partner would leave all of his estate to me and I would leave my estate to my children. However we are in a quandary - If I was to die then his needs to be catered for. He would leave all of his estate to my children (he has no family to leave an estate to) but in the meantime how do we construct each of our Wills ? He only has superannuation here (in Australia) in Germany and the UK but no other assets.

 

[Sophea]

Hi Rebecca,

From what you have told us above, I am guessing that there is no real issue with his will. Therefore you are querying how to construct your will.

Assuming that you have purchased the house together as joint tenants, the house will automatically pass to your partner when you die. It will not form part of your estate and will not be distributed under the terms of your will. If you hold title as tenants in common - then you would be able to leave your share of the property to your children.

That being the case, you could draft a will affording your children specific monetary amounts that they are entitled to when they are 18 and the rest to your partner. In this case, he would get a proportion of your super, cash and the house, but also give your kids a personal gift, if he lives a long time.

There is a risk however, that once you die he will meet someone else and he might change his mind about leaving everything to your children. In this situation, while the kids would probably be entitled to bring a family provision application (which is expensive) you might also consider mutual wills or making a contract that you don't change your wills after the other partner dies.

 

[bluetongue]

You may also wish to consider that your half of the property is held as tenant in common and that on your death this share passes to your children with your partner receiving a life estate on the property that allows him to live in the property as long as he wants, but when he decides to leave, the responsibility for your share of the property returns to you children. There are many variations of clauses that can be drafted for life estates once you and your partner decide what you wish to put in place upon your death.

Based on your initial query, there are a number of other issues you need to be concerned with such as your superannuation and how it is dealt with by the trustee, your life insurance, mortgage insurance, etc.