In theory, therefore, in England and Wales, testamentary freedom means you could choose to leave your worldly belongings to, say, a host of charities and bequeath nothing at all to your spouse.
It also means you could leave your estates to your stepchildren and that, if you so wish, you are not necessarily obliged to provide for your blood children.
Given households with multiple families have increased so much over recent years, it is plausible that an individual may choose to leave their estates to a stepchild or stepchildren, as well as – or even as opposed – to their own children. Indeed, the notion of the wicked step-parent now seems somewhat outdated.
This is particularly the case if they have been alienated from their own children for many years or have never been given the opportunity to know them at all.
Unfettered discretion is not completely possible, and advisers should beware the Inheritance (Provision for Family and Dependants) Act 1975. This Act essentially allows the claimant (including a spouse, child or people treated as children or dependants) to bring a claim against the deceased’s estate where they are left without reasonable financial provision.
The claimant has to show they were maintained by the deceased prior to their death: case law says maintenance is a broad concept and includes not just financial support but also allowing the claimant to live rent free in the home or giving them frequent gifts.
Therefore while it is possible to leave one’s estate to a stepchild in favour of a blood child, individuals must think practically of their circumstances in the round before deciding to cut a child out of their will.
This is particularly so if they have a history of financially maintaining that child: it ought to come as no surprise that a court would always favour reasonableness when faced with a claim of this kind.
If clients are considering a new will that cuts out their blood children, there are some practical tips and considerations to bear in mind:
- Reflect carefully on what you are planning and the potential implications: whom do you want to benefit in the first instance, how and why? Have you always been estranged from your children? What is the relationship like between your children and stepchildren? Is animosity likely to arise out of your proposed actions?
- If you want to include both children and stepchildren either equally or unequally, do you have enough assets to cover what you envisage?
- Seek legal advice: a solicitor can help to guide you to reach decisions on the above questions.
- It is of paramount importance to document diligently clients' wishes. This can be effected by the will, but also in a separate letter of wishes (although please ensure this is signed and stored safely alongside the will).
- If you choose to omit a child in favour of a stepchild in your Will, can you instead leave the former a small legacy? Is there a precious item they could inherit as an alternative, such as a treasured piece of jewellery? Creativity is possible to ensure that your children are not left – or bereft – feeling unloved.
While individuals do have the freedom to create the will they want, it is nevertheless an unpleasant
thought that loved ones might be forced into an inheritance dispute after you are gone.
Some forethought now along the above lines could prove invaluable to avoid painful, protracted and potentially costly litigation between your blended family members.
It is common for those who are considering re-marrying into a blended family arrangement, to have already accumulated wealth in their own name and may have possibly received financial provision as a result of a previous divorce settlement.
They may want to protect these assets in the event of a marriage breakdown and therefore it would be sensible to consider entering into a pre-nuptial agreement.