Approximately one in three families in the UK are now “blended”, meaning they have a combination of parents, new partners and children from different relationships. A 2021 survey conducted by STEP found that blended families are now commonplace, with 96% of respondents now advising this type of family and three‑quarters seeing an increase in the number of blended families they work with over the past ten years.
Trust and Probate Litigation partner Emma Holland recently spoke to Luxury London about the issue of blended families and the risks of disinheriting step-children. This article provides more detail on the legal issues involved.
What specific wording should be used in a will to make sure step-children are included? Equally are there any terms or vague wording which should be avoided?
The clearest approach would be to include their actual names. If, as if often the case, there are repeated references to “my children”, “issue of mine”, “my descendants” you should explain towards the beginning of the document that any reference to these terms is intended to also include step-children.
What if I have no will?
Where the deceased had no will, the intestacy rules apply. Step-children are not considered children for the purpose of the intestacy rules and therefore have no automatic entitlement to a step-parent’s estate if they die without a will.
Consequently, step-children can end up being excluded from benefit in favour of relations who on the face of it have a far more distant relationship with the deceased.
This was effectively what happened in a recent case where as a result of the intestacy rules the step-son, with whom the deceased had a close relationship, was initially overlooked. His step father’s estate was instead divided between seven distant cousins.
What if the will is unclear?
Whilst a will can specify precisely what references to children mean, if there is no definition or guidance it is unlikely to include step-children, unless the step-parent has adopted them. This is because the law in England has long considered that the term “child” does not include a step-child unless the will expressly states otherwise, or in the case of an extended meaning arising from the context.
The High Court recently rejected the argument that a distinction between children and step-children was discriminatory under the Human Rights Act: it simply reflected the relational difference between the two. However, where there is evidence that this is clearly not what the testator (person making the will) intended, the court may be able to assist.
For example, the High Court previously considered whether a reference in a will to ‘issue of mine’ should be read to include the deceased’s step-children. It found that while the traditional meaning of the word ‘issue’ did not include step-children, in this instance the will should be read to include them. The basis for this was the clear evidence that the testator and his wife had made mirror wills with the intention of treating equally the five children they had between them from previous marriages. Other parts of the testator’s will also indicated that his children and step-children should benefit from his estate in equal shares. It was therefore clear that this mistaken reference to ‘issue of mine’ was intended to include step-children.
What can a step-child do if they have been left out for a reason other than issues relating to drafting of the will?
A step-child who is excluded from the estate may wish to consider making a claim on the basis that the deceased failed to make “reasonable financial provision” for them under the Inheritance (Provision for Family and Dependents) Act 1975.
A step-child would qualify as a child treated by the deceased as a “child of the family” and would have, on the face of it, a right to bring a claim, regardless of whether they are a minor or adult. The remedy (result of the case, typically a financial award) is however at the discretion of the court and therefore there are no guarantees that a claim will be successful.
The earlier mentioned step-son who was overlooked in respect of his step-father’s estate was eventually successful in his claim for reasonable financial provision. He was 45 years old but in a poor financial position (he had been forced to stop working as a mechanic due to a numerous physical injuries) and was financially dependent on his wife, whose business was struggling due to the impact of Covid-19. The court considered that his circumstances resulted in ‘some form of moral claim’ to his step-father’s estate, given their close relationship. This contrasted with the lack of responsibility owed to the distant cousins.
Even where a person of mature years has never lived with nor been maintained by a step-parent, they may nevertheless be entitled to apply under the Act for financial provision on the death of that step-parent. This was the case in Leach v Linderman, where the applicant’s father had married her step-mother when she was 32. The father had died a decade later, leaving his entire estate to the stepmother, who had then died.
If a step-child contests a will, what evidence is admissible to prove a close relationship with the deceased?
To be eligible to make a claim for reasonable financial provision, a step-child must show that they were treated by the deceased as a child of the family. They must demonstrate that the deceased assumed the role of parent and took on the accompanying responsibilities and privileges. Displays of kindness, affection or hospitality will not suffice, although the closeness of the relationship is likely to be a key factor.
Does the age of step-children at the time of the death have any impact on the way a will is read?
The age of a stepchild has no bearing on whether or not they are treated as included under a will.
If they are unhappy with the will, or left out because there is no will, an adult stepchild could bring a claim for reasonable financial provision. This applies even if the stepchild is married or if they have never lived in the same household together with the deceased. The case law indicates that the stepchild will generally need to show strained financial circumstances in order to demonstrate a need for maintenance.
What matters will the court have regard to in deciding whether to make an award?
The step-child will be entitled to claim reasonable financial provision for their maintenance in the foreseeable future, taking into account their financial resources and needs. The court will consider the manner in which the stepchild was being, or might expect to be, educated or trained. It will also examine whether the deceased maintained and assumed responsibility for the stepchild. The extent to which any other person (such as a biological parent) has liability to maintain the stepchild will also be factored in.
The financial resources and competing needs of the beneficiaries under the will and any other person applying for reasonable financial provision will also need to be weighed in the balance, along with the size and nature of the net estate.
As blended families become more common, do you anticipate any changes in the law to the way wills are understood or the meaning of terms such as ‘child’?
Not in relation to step-children. A case earlier this year made clear the court’s opinion that treating biological children and step-children differently is not discriminatory. One can certainly see an argument that, particularly where a couple marry late in life, a step-child barely known to the deceased should not expect to be treated in the same way as a biological child. On the other hand, stepchildren are often very close to step-parents and viewed by many as akin to biological children. This is why it is so important to have a clearly drafted will.
Is the English treatment of wills common worldwide? What impact would dual nationality or being a family that lives across multiple continents have on the reading of a will?
In England, we have testamentary freedom, which means a person is free to dispose of their assets as they wish on their death (although, as above, the estate may face a potential claim for reasonable financial provision). Many other countries have ‘forced heirship’ laws, meaning that certain categories of family members are classed as protected heirs and cannot be disinherited. Succession planning advice will likely be needed in multiple jurisdictions if a person’s interests span more than one country. There are also complex conflict of law rules to determine which country’s law is prioritised in respect of which assets.
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