Australian families come in all shapes and sizes. It is quite common now for there to be at least one second marriage within our extended family and particularly when our parents re-marry or re-partner in their later years.
It can be quite an awkward situation when a parent enters into a relationship later in life and invites their new partner into their home to live when they subsequently die and the new partner is left living in the house owned by the now deceased partner. The partner has left everything in the estate to his or her children and has not made any provision for the new partner.
In circumstances where the new partner does not have another home to go to and has no money to relocate, it can be a difficult situation for the children of the deceased parent and the widowed partner of the deceased. There have been documented cases of partners literally being thrown out of their own homes and onto the streets by their stepchildren after the death of their partner.
The new partner or spouse obviously have rights that they can protect in relation to living in the house but these depend upon how long they have been in a relationship with the deceased and whether they have a claim against the estate.
However, in many cases the old adage that possession is nine-tenths of the law is very true in these circumstances. It can be very difficult to have someone evicted from a house if they do not want to leave. Landlords who have been forced to evict tenants for non-payment of rent and other breaches of the tenancy will attest to the lengthy delays and costs involved of evicting people from homes.
The best way to avoid these awkward situations is for the parent to ensure that his or her Will makes provision for their spouse or partner (perhaps a life tenancy) and clearly sets out what is to happen with their assets after their death. This will ensure that their partner is protected and their children are well aware of what their intentions are in relation to their assets. It is important that people in these situations obtain appropriate legal advice and make an appropriate Will to cover these circumstances.
If you would like to discuss making a new Will or updating an existing Will please contact our Department Manager Donna Tolley, on direct line (07) 5506 8241 or by email on dtolley@attwoodmarshall.com.au to arrange an appointment.
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