When a client has previously entered into a Binding Financial Agreement (BFA) with another person regarding a prior relationship, it's important to understand its limitations. Generally, while a BFA can attempt to deal with the division of matrimonial property on death, the general position in most states of Australia is that a BFA cannot operate to bind or exclude a former spouse from making a family provision claim or challenging a person's Will. Most family provision laws throughout Australia deem a former wife or husband of a deceased person to be eligible to bring a family provision claim.
Action Items for Advisers:
Review the client's existing Binding Financial Agreement (BFA)
Understand the limitations of the BFA regarding exclusion from family provision claims
Recognise that former spouses can challenge your client’s Will
Consult with a lawyer about protecting your client’s estate from claims
Consider advising the client to update their Will to address potential challenges
Ensure all your client's legal documents are current and reflect their wishes
Regularly review and update your client's estate plan as neededinding Financial Agreements
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