Family Law

Over the years, the wills and succession questions I have been asked more often than any other concern stepchildren:

• Do they inherit on intestacy, where there’s no will?
• Where a will leaves assets to children, would that gift include 'step' children?

And the question is usually asked by grandparents, happy to see their wealth pass down the 'blood' line, but not to the children of, say, their son’s second wife.

Reference in a will to 'children' will mean biological and legally adopted children only; and intestacy law similarly benefits such children only.

It’s not usual to name one’s children in the will; to do so would exclude any child born after the will was made unless, indeed, you wanted only to benefit your named children, rather than all of them.

Despite my assertion that reference to, say, 'grandchildren' doesn’t include step-grandchildren; some grandparents remain sufficiently concerned to insist on grandchildren being specifically named in the will.

The number of second marriages, particularly of persons aged 60+, means that the number of people acquiring stepchildren is on the rise. Children of the first marriage often express the fear that dad will leave everything to his new wife and she’ll leave everything (including their 'inheritance') in due course, to her own children only.

As lawyers preparing wills, we address daily the dilemma facing people on a second marriage as to how to provide for a new spouse without completely defeating the expectations of the children from their first marriage.

Being a step-parent can be emotionally challenging.

Many, however, embrace the relationship well and nobly, becoming a loving and equal parent to the existing child of a new partner even if they don’t formally adopt the child. Where that child is to benefit under a will, he or she will need, obviously, to be named specifically, as they won’t be included otherwise in the description 'my children'. Conceivably, it might be possible to provide evidence in an individual case, to establish on the basis of the so-called 'armchair principle', that the testator intended reference to 'children' to include a stepchild.

Where stepchildren are young, they may well be dependent on their step-parent, and failing to provide for them in a will, or more usually, by reason of dying intestate, might lead to a claim for 'reasonable financial provision' under the Inheritance (Provision for Family and Dependents) Act 1975. Any child treated by the deceased as a 'child of the family' (whether or not the deceased was married to the child’s parent) has the right to bring a claim.

Intestacy is the principal enemy of the stepchild, especially as the person acting in the role of parent to a minor child that’s not their own is likely to be young themselves – with the risk of their untimely death and the need to make a will far from the forefront of their mind.

This article was originally published by Kingsley Napley