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One does not have to be a celebrity, like Katie Holmes, or royalty like Camilla Parker-Bowles to have issues with step-children.

In fact, one of the most common forms of dispute that we see in estate disputes are between second spouses and children from the first marriage. For example, unbeknownst to a second wife, her husband may prepare a will favouring his children, providing little for his second wife and excluding his second wife's children. The emotional distress felt by family members at the passing of a loved one may be greatly exacerbated by the anguish caused by such a will which is perceived to be grossly unfair.

A particular problem arises where in the second marriage each spouse prepares a will which mirrors the provision of their spouse, believing that by having prepared such mutual wills each can be certain that the other is bound by the will that has been prepared. However, this is not necessarily the case.

Take the example of John and Julie, each marrying for the second time. Each brings two children from previous marriages. Those children are adults living independently. John and Julie prepare mutual wills in which each provides that at their death they will leave their entire estate to the other spouse on the basis that that surviving spouse, when they pass away, will have their estate distributed equally amongst all of the children.

Julie passes away, and her estate passes to John. Several years later John commences a de facto relationship and prepares a fresh will leaving some of his estate to his new de facto partner and the residue of his estate between only his children. The new will is only discovered by Julie's children on John's passing. The net result is that Julie's children receive nothing, and feel cheated by John.

Were Julie to have her time again, how could she ensure that her children are provided for? How can she ensure peace with the step-children?

Mutual wills will only be effective in these circumstances where John and Julie also enter into a binding agreement, usually in the form of a deed, in which each is bound by an obligation not to change their will so as to ensure all of the children inherit.

Such agreements can be revoked by consent. Therefore, if John and Julie's relationship was to terminate for reasons other than the death of one of them,they could always agree as part of any family law settlement, to revoke that deed.

For the above reasons we recommend that any clients entering into a second marriage seriously contemplate the preparation of mutual wills and a deed of agreement for peace of mind. If the time for making mutual wills and a deed of agreement has passed and there is now a dispute within the family regarding the terms of a family member's will, we are able to provide the guidance needed to resolve any conflict which may arise.

Rod Berry and Teresa Dodaro, Disputed Estates Team, Atkinson Vinden Heazlewoods Lawyers.

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