This means certain portions of the estate must be left to specific family members (ordinarily a spouse and or their children, and or parents); the beneficiaries are consequently afforded a level of protection they might not otherwise have.
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.
Inheritance concerns
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 Indeed, the notion of the wicked step-parent now seems somewhat outdated.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:
