In England & Wales we have “testamentary freedom”, which means that people can leave everything to whoever they want and cut out anyone, including close family members. Noone has a right to inherit on anyone’s death. There are many reasons why someone might not want a family member to inherit from their estate, including a stepchild. They may not have a close relationship, or they may know that their stepchild will receive an inheritance from their own parents. Whatever the reason, there are a few things to consider when disinheriting a stepchild.
A Will can be challenged by anyone who has “standing”. In order to have standing, the person seeking to challenge the Will must benefit by the will being overturned. This might be because they benefit under a previous will or the intestacy rules (which govern how estates are distributed when someone dies without a valid Will). If you had a previous will benefiting your stepchild, and you then made a new Will to disinherit them, they may have standing to challenge your new Will. Stepchildren do not benefit under the intestacy rules (unless they have been formally adopted), so if you didn’t have a previous will benefiting your stepchild they are unlikely to be able to bring a challenge.
If your stepchild does have standing to challenge your Will, they will still need to be able to prove that there is some reason why the Will is invalid. They may say that you were influenced or pressured into disinheriting them, or that you did not have the mental capacity to make a new Will. Whatever the grounds for challenge, they will need evidence to support what they say.
Separately from challenging your Will, it may be possible for your stepchild to bring a claim against your estate under the Inheritance (Provision for Family and Dependants) Act 1975 (the “Inheritance Act”). The Inheritance Act allows certain categories of people to bring a claim against an estate if they have not been reasonably provided for.
Stepchildren may fall within the following categories under the Inheritance Act:
- “any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family”
- “any person… who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased”
Whether your stepchild was treated as “a child of the family” will depend on the particular circumstances. Facts that might be relevant include whether they have ever lived with you, how often you see them and what kind of relationship you have with them.
Again, whether your stepchild was “maintained” by you will depend on the particular circumstances. If you were providing financial support or accommodation to your stepchild immediately before your death, then they are likely to have been “maintained” by you.
If your stepchild was treated as “a child of the family” or “maintained” by you, then they will be able to bring a claim under the Inheritance Act for reasonable financial provision. The Inheritance Act defines “reasonable financial provision” as the financial provision that it would be reasonable for the applicant to receive in all the circumstances for their maintenance. The Court will look at factors such as the size of your estate, the financial resources and needs of your stepchild and the financial resources and needs of the people who you chose to benefit in your will. Your stepchild’s claim will be limited to financial provision “for their maintenance”, for example financial provision to help them meet a shortfall in their income or provide them with suitable accommodation.
This is a complex area of law and it is important to take specialist legal advice to ensure that your wishes are carried out. If you are concerned about your stepchild challenging your Will, then please get in touch and a member of our private wealth disputes team will be happy to discuss matters with you.