Why Every Adult in NSW Should Have a Will - Even If You Think You Don't Need One

Blended families are now more common than ever, with many Australians entering second marriages or long-term relationships bringing children from previous relationships. While these families offer new beginnings, they can also bring unique legal complexities when it comes to estate planning. Without a carefully considered estate plan, your loved ones may face conflict, financial hardship, or even court proceedings after your death. This blog explores the key estate planning challenges for blended families in New South Wales (NSW) and outlines how you can ensure your wishes are carried out while protecting everyone’s interests. Why Estate Planning Is Crucial in Blended Families Standard wills and simple asset distributions often fall short in blended family situations. Children from a previous relationship may feel excluded, or new spouses may be left financially vulnerable. In NSW, failure to plan can result in disputes or claims under the Succession Act 2006 (NSW). Estate planning offers peace of mind by allowing you to: 🖋 Provide fairly for all family members. 🖋 Minimise the risk of legal disputes. 🖋 Protect vulnerable beneficiaries (including minors or disabled dependants). Clarify your intentions around stepchildren, biological children, and former spouses. Key Legal Issues in Blended Family Estate Planning 1. Stepchildren and Legal Entitlements Under NSW law, stepchildren are not automatically entitled to benefit from your estate unless you name them in your will. However, they may still bring a family provision claim under section 57 of the Succession Act 2006 (NSW) if they were dependent on you or had a close personal relationship. Tip: If you want to include (or exclude) stepchildren, be explicit in your will and consider a Statement of Wishes to explain your reasoning. 2. Family Provision Claims and Contested Wills Blended families often involve competing interests, particularly where there are children from different relationships. Even with a valid will, any eligible person—such as a spouse, de facto partner, child, or dependent stepchild—may challenge your estate if they believe they have not been adequately provided for. To reduce the risk of litigation: ↪ Consider testamentary trusts, which offer flexible distributions and asset protection. ↪ Seek legal advice about mutual wills if both spouses want to bind their estate plans. ↪ Document your intentions and the reasons for unequal or selective distributions. 3. Life Interests and Rights to Reside: What Can Go Wrong Granting your surviving spouse or partner a life interest or a right to reside in your property is a common way to balance providing for them during their lifetime while ensuring your children from a previous relationship inherit later. However, without precise drafting and foresight, these arrangements can lead to disputes, confusion, and even financial loss. Common risks include: ✔ Lack of clarity about conditions: If your will does not clearly define who is responsible for expenses such as council rates, maintenance, or insurance, disputes may arise between the life tenant and remaindermen (the beneficiaries who inherit after the life interest ends). ✔ Inflexibility: The surviving partner may need to move due to illness, finances, or personal reasons, but the life interest may not allow sale or substitution of the property, leaving them trapped or under financial strain. ✔ Deterioration of the property: Without a proper maintenance obligation, the property could fall into disrepair, reducing its value and impacting your children’s eventual inheritance. ✔ Conflict between beneficiaries: Children from a previous relationship may become impatient or suspicious of the surviving spouse’s actions, leading to costly litigation. Best practice: Include a mechanism for dispute resolution, clearly define obligations, and consider whether a right to reside with a “failsafe” sale clause may be more appropriate than a full life interest. 4. Superannuation Death Benefits: The Risks and Tax Traps Superannuation is a major asset for many Australians, but unlike your other assets, it does not automatically pass under your will unless specifically directed to your estate. In blended family situations, this can lead to costly and emotionally charged disputes. Risks and complications include: Invalid or expired Binding Death Benefit Nominations (BDBNs): Many BDBNs lapse after three years unless made non-lapsing. If no valid nomination exists, the super trustee will exercise discretion over who receives your super—even potentially excluding your intended beneficiaries. Disputes between spouse and adult children: A surviving spouse may receive the superannuation benefit directly while adult children from a previous relationship receive little or nothing. This can lead to family provision claims or even challenges to the superannuation trustee’s decision. Tax consequences: The tax treatment of super death benefits varies significantly depending on the recipient: A tax-dependent (e.g. spouse or child under 18) can receive the super tax-free. A non-tax dependent (e.g. adult child) may pay up to 17% tax on the taxable component, or up to 32% if an untaxed element (such as from a government fund) is involved. Example: If a super fund pays $500,000 directly to your adult child without any tax planning, they could lose up to $85,000 in tax. Best practice: ▶ Ensure you have a valid and up-to-date BDBN. ▶ Consider directing superannuation to your estate and using a testamentary trust to distribute it in a tax-effective way. ▶ Seek advice on the taxable and non-taxable components of your super and how they will be treated depending on who receives them. 5. Appointing the Right Executors and Guardians: Avoiding Conflict and Delay Choosing the wrong executor in a blended family scenario can lead to delays, litigation, or the mishandling of estate assets. In families with a history of conflict or strained relationships between the surviving spouse and stepchildren, these issues are amplified. What can go wrong: 𓂃🖊 Conflict of interest: Appointing your spouse as sole executor may lead to distrust from your children—especially if the spouse is also a major beneficiary. This can result in accusations of misconduct or delay in distributing the estate. 𓂃🖊 Mismanagement or neglect: An inexperienced executor may fail to meet legal obligations, such as obtaining probate, lodging tax returns, or distributing assets correctly. 𓂃🖊 Disputes between co-executors: Appointing more than one executor (e.g. your spouse and an adult child) can create deadlock if they do not get along or disagree on key decisions. Guardianship issues can also arise where: ╰┈➤ Parents have not clearly stated their wishes in relation to children under 18; ╰┈➤ Competing family members (e.g. biological vs step-parents) assert their right to raise the child; ╰┈➤ No legal documentation supports informal parenting arrangements. Best practice: Consider appointing a neutral third party (such as a professional trustee or solicitor) as executor where family dynamics are sensitive. Ensure guardianship appointments are clearly documented in your will, and supported by a Statement of Wishes. Discuss your decisions with family in advance, if appropriate, to reduce the chance of surprise or resentment. How We Can Help At Dawson Pouwhare Legal and Conveyancing , we understand the sensitive and complex nature of estate planning in blended families. Our team will work closely with you to: Draft a clear and legally enforceable will. Advise on testamentary trusts, mutual wills, and asset protection. Minimise the risk of future disputes. Help you structure your estate to reflect your unique family dynamic. Don’t leave your loved ones with uncertainty or legal battles. Plan with confidence and clarity. Contact our office today on (02) 4954 8666 or visit www.dawsonpouwhare.com.au to arrange a confidential consultation.

Stamp duty is one of the most significant additional costs that purchasers face when buying property in New South Wales (NSW). Whether you’re a first home purchaser or an experienced investor, understanding how stamp duty works—and what concessions may be available—can make a substantial difference to your overall financial position.

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