Blended families are becoming more and more common in today’s society. With the emergence of blended families comes the concern of how to deal with your estate to ensure your children are provided for after you have passed.
Blended families are often concerned that once they pass, their partner will change their Will and only provide for their biological children. Meaning the deceased’s children will not inherent any of their biological parents’ estate.
One way to protect your estate once you have passed to ensure your children are not left out of your surviving partner’s Will, is to enter into a Deed of Mutual Wills.
A Deed of Mutual Wills is a contract made between spouses or partners where each party agrees to be legally bound by the decision not to change their respective wills without the consent of the other.
On 8 February 2024, the Supreme Court of Victoria handed down a decision which determined a mutual will created over 30 years ago in the form of an oral agreement existed despite both parties to the agreement now being deceased.
In the case of Re Miglic, the Plaintiffs successfully proved the existence of an oral mutual wills agreement which resulted in the formation of a declaration that approximately 99% of the estate was to be held on trust for the benefit of the Plaintiffs.
Background Facts
In 1993, Kurt and Marilyn Miglic each drafted wills respectively. The wills operated to the effect of gifting the entirety of each other’s Estate to one another, and the entirety of the survivor’s Estate being gifted to Kurt’s daughters being Marilyn’s stepdaughters (the Plaintiffs).
After Kurt’s death in 2007, Marilyn made additional wills, each leaving a portion of the Estate to her nieces and nephew (the Defendants).
The Plaintiffs argued that in 1993, Kurt and Marilyn made a binding mutual will and agreed to not alter their 1993 wills without the other’s consent. They sought a declaration that Marilyn’s Estate was held on trust for them pursuant to the 1993 wills.
The Defendants argued the subsequent wills made by Marilyn after Kurt’s death were valid and therefore, they were entitled to a portion of the estate.
The issue in this matter was whether Marilyn was legally bound by an oral agreement to never change her 1993 will. In doing so, the court was required to consider whether a mutual will was verbally created between Kurt and Marilyn.
The Court’s Findings
The Court held that the Plaintiffs did fulfill their onus of proving an oral mutual will existed between Kurt and Marilyn.
The case-specific circumstances which the court considered in accepting the Plaintiffs’ evidence include:
Oral agreements and mutual wills are only one of a number of ways to ensure your wishes are protected when making your wills, especially in a blended family situation.
If you are concerned about how to protect your children’s interests in such a situation, please reach out to us. We can help!
