Whatever your circumstances, it’s natural to want to make sure your children are going to be well cared for when you’re gone. However, with 1 in 3 families in the UK now considered ‘blended’ – with a combination of parents, new partners and children from different relationships – making sure your will is read in exactly the way you intended can become a little trickier.
Luckily, as this type of family arrangement becomes more commonplace, finding good legal advice is getting easier, with 96 per cent of respondents to a 2021 survey of lawyers, accountants and trustees saying they now advise these types of families. But, of course, it always pays to do your own research; Emma Holland, a partner in Stewarts’ Trust and Probate Litigation team talks us through the finer points of inheritance law for blended families.
Make a will – and keep it up to date
It may sound obvious but a 2020 study found that 59 per cent of adults in the UK do not have a will. English law dictates that intestacy rules apply should you die without one, and while this has a range of implications when it comes to blended families, the most important one is that step-children would not be considered as children of the deceased and therefore have no automatic entitlement to a step-parent’s estate.
Especially in cases where the step-parent has no other immediate family members, this can result in the estate being divided among much more distant relatives. To avoid this, Holland recommends updating your will every time your family arrangement changes and being very specific with the wording of your will. “The clearest approach would be to include your step-children’s actual names (rather than references to ‘step-children’ etc.),” she recommends. “If, as is often the case, there are repeated references to ‘my children’, ‘issue of mine’ or ‘my descendants’, you should explain towards the beginning of the document that any reference to these terms is intended to include step-children.”
This is particularly important as, under English law, the term ‘child’ is not read to include step-children, unless they have been adopted or the will expressly states otherwise. There are instances where this has been successfully disputed, for example when a couple made mirror wills that, when read as a whole, clearly indicated they wished to treat all their children, step- or otherwise, equally, but it is wise to avoid any such confusion by being clear and precise in your will from the outset.
How to ensure your step-children are taken care of
As well as explicitly naming them in your will, there are further actions a step-parent can take to make sure their step-children are treated equally under the law. The most obvious one, Holland suggests, is to legally adopt your step-children. This is a significant step that may involve social workers and your local council, and possibly result in parental responsibilities being taken away from a living biological parent. This may be a particularly pertinent step to take with younger step-children as the age of a step-child has no bearing on how they are treated in the reading of a will.
What if my family isn’t based solely in the UK?
While this applies to far more than just inheritance law, things can become more complicated when a family is based across multiple countries or continents. “In England, we have testamentary freedom, which means a person is free to dispose of their assets as they wish on their death,” explains Holland. “Many other countries, however, have what are known as ‘forced heirship’ laws meaning that certain categories of family members are classed as protected heirs and cannot be disinherited. This may make it more difficult for a person to make provision for step-children in their will in the way they wish to do so.”
Succession planning advice will likely be needed in multiple jurisdictions if a person’s interests span more than one country,” continues Holland. “There are also complex conflict of law rules which apply to determine which country’s law trumps in respect of which assets.” In layman’s terms, if you live in more than one country and/or have properties, bank accounts or business interests across multiple countries, it may not be as simple as deciding who gets what. The best advice is to consult a lawyer with expertise in international succession planning to guide you through the process.
What can a step-child do if they feel they have been unfairly treated?
“If they are unhappy with the will or left out because there is no will, a step-child could bring a claim for reasonable financial provision. This is available even if the step-child is an adult and notwithstanding that they may be married or have never lived in the same household together with the deceased,” says Holland. Such claims may be brought under the Inheritance (Provision for Family and Dependents) Act 1975 and would require the step-child to demonstrate certain aspects of their relationship with the deceased.
“In order to be eligible to make a claim for reasonable financial provision, a step-child will need to show that they were treated by the deceased as a child of the family,” says Holland. “It must be shown 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.”
However, these awards are made at the court’s discretion and there is no guarantee an applicant will be successful. There are numerous factors a court will consider when deciding whether to make an award, including the applicant’s current financial resources and needs, expectations for education and training, and the competing needs of other persons due to inherit.
“It will also examine whether the deceased maintained and assumed responsibility for the step-child. The extent to which any other person (such as a biological parent) has liability to maintain the step-child will also be factored in,” adds Holland.
This was demonstrated in a recent case in which a step-son was overlooked due to his step-father not having a will. The step-son was aged 45 but in a poor financial position due to the impact of the Covid-19 pandemic. The court ruled that both this and the closeness of his relationship with the deceased granted him ‘some form of moral claim’ to his step-father’s estate, effectively trumping the interests of the distant cousins who would have otherwise inherited it.
Will the law change?
As was recently demonstrated by changes to divorce law, the UK’s legal landscape can be influenced by changing social norms. So, as blended families become increasingly common, is the same going to happen with respect to step-children? Holland thinks it is unlikely.
“A case earlier this year made clear that the courts consider treating biological children and step-children differently is not discriminatory,” she explains. “One can certainly see an argument that, particularly where a couple marry late in life, a step-child who may barely have been known to the deceased should not expect to be treated in the same way as a biological child. That said, on the other side of the coin, step-children 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 to make your intention clearer.”
For more information or to seek advice if you have been overlooked in respect of inheritance from a step-parent, visit stewartslaw.com