In the recent decision by Queensland Supreme Court decision of Forster v Forster [2022] QSC 30 the Court once again gave a ringing endorsement of mutual wills and the important role they can play in the context of a blended family.
Mrs Forster and her late husband entered an agreement under which they promised to make made mutual wills leaving their respective estate interests to each other in the first place and then on the death of the last of them equally between their respective children from previous marriages.
The agreement stipulated that neither Mrs Forster nor the deceased would make a new will unless it disposed of the estate equally to the 5 children and further that neither either take any action to diminish the estate other than for reasonable expenses associated with the costs of living (for example by gifting property during their lifetime preferentially to a child).
The son of the deceased was fearful that Mrs Forster would seek to diminish the estate in her lifetime, including selling property or giving property to her children reducing his entitlement upon her death. He filed proceedings in the Supreme Court of Queensland seeking a declaration that the estate property she inherited was held on trust for the 5 children. If such a declaration were made then she would be obliged to disclose her financial position on request allowing notice of any attempt to diminish the estate or disposing of property.
After a detailed analysis of prior decisions concerning mutual will agreements, the Court determined that making an order that the estate property was held on trust for the children would deprive Mrs Forster of the right to enjoy the estate property absolutely; and further that it would not ordinarily intervene to make such a declaration unless it was satisfied that the person bound by the agreement had breached it by changing their will or disposing of property.
However, there was no evidence established that a breach had occurred. There was no evidence of any wrongdoing on the part of Mrs Forster at all, but merely a suspicion on the part of the son. Accordingly, the Court found that Mrs Forster received the estate absolutely and was free to use it as she saw fit. Accordingly, the proceedings were dismissed.
This decision highlights the power of a mutual wills agreement to ensure that a spouse is cared for and protected in their lifetime, but also held to honour the mutual will and ensure children in blended families receive the agreed share of the estate.
Mutual wills are an excellent tool to protect your estate and ensure your wishes are met, even after death.
Call the experienced lawyers at The Law Office of Conrad Curry to discuss your estate planning needs and if a mutual will agreement is right for you. (02) 4050 0330.
