Nick (60) and Charlotte (57) were married for 5 years and living together in Melbourne. Nick was widowed 9 years prior and had two children from this marriage, Joshua and Tara (33 and 37).

Although Nick had a good relationship with his children, the relationship between Charlotte and Nick’s two children was strained. Charlotte also had a teenage daughter in her last year at high school from a previous relationship. Both Nick and Charlotte were still working but planning to retire in the next 2-3 years.

Unexpectedly, Nick died from a heart attack. Unfortunately, Nick had not considered updating his will and he had not realised that his marriage to Charlotte would revoke his previous will.

Nick therefore died “intestate” and the rules of intestacy will determine how his estate is to be divided.

Upon Nick’s death, Charlotte became the sole owner of their $1.8m home as this property was held as joint tenants with Charlotte. This property will not form part of Nick’s estate and instead will pass automatically to Charlotte by way of survivorship.

Nick’s estate primarily consists of a combination of shares and bank accounts valued at approximately $500,000.00.

Nick also held $600,000.00 in superannuation which also will not automatically form part of his estate. Nick did not have any binding death benefit nomination in place and therefore the trustee of his superannuation fund will ultimately decide who is to receive his superannuation. Noting Nick’s children are both adults and were not dependent on Nick at the time of his death, it is likely Charlotte will receive the superannuation.  

As Nick had not updated his estate plan, it no longer accurately reflected his current situation. Although Nick did not consider himself particularly wealthy, had he sought advice from an experience Wills and Estate lawyer prior to his death, he would have realised there was a reasonable estate to consider, and that he needed to update his estate plan if he wanted to provide for both his current wife and children from his previous marriage, Joshua, and Tara.

Instead, Nick’s children, Joshua and Tara were left with nothing from their father’s estate. Nick’s home and superannuation were not considered part of his estate, and Nick’s estate was less than the spouse’s entitlement under intestacy.

Despite what Nick would have wanted, his children were not provided for in his death.

The only avenue now for Nick’s children, is to make a family provision claim on the estate to seek provision. Nick’s children may also make a claim on the superannuation.

This story reflects why it is important to continually be updating your will and estate planning documents to ensure your wishes are legally captured. Please reach out to our team today to discuss further your estate planning requirements.

Note: This story is not based on client experience but instead a portrayal of real-life events.