The old idea of a family structure being a married couple with 2.4 biological children is fast becoming a thing of the past. The blended family model with parents remarrying and with children from previous relationships is very much the ‘new normal.’ This makes the need for meticulous detail in estate planning and Will writing all the more important.
Unfortunately, the resulting lack of communication and acrimony that blended families tend to experience has resulted in an increase in ‘sideways disinheritance’ and subsequently, Will disputes.
A recent case – ‘McLean & Ors v McLean perfectly illustrates sideways disinheritance and the need for effective communication and clarity of written Will detail.
Maureen was married to Reginald and they had one biological son. Reginald also had 3 children from a previous relationship and in 2017, when Maureen and Reginald made their Wills, they provided for all four children, giving each an equal share of the estate upon the death of the last surviving parent / step parent.
On Reginald’s death the estate passed to Maureen in accordance with the Will. However, shortly before she passed, in 2019, Maureen changed the Will to disinherit her three stepchildren.
The stepchildren failed in their attempt to challenge the new Will on the basis that Reginald and Maureen had, in principle, verbally agreed ‘Mutual Wills’ meaning that whatever both testators agree, within their Wills, it can’t then be altered by the sole remaining testator in the future.
Despite the solicitor, who prepared the 2017 Will, giving evidence that Maureen had verbally agreed not to disinherit Reginald’s three children from his former marriage, this wasn’t enough hard persuasive evidence for the judge, hearing the case, to convince him that they had agreed to Mutual Will’s since it wasn’t clearly documented. Therefore, he ruled in favour of the later 2019 Will.
The lesson of this sorry tale is that if you have a ‘blended’ family with children from previous relationships, you need clear and open lines of communication between partners, spouses, children, stepchildren, and their legal advisors. You need to make your estate and Will wishes clear to all said parties and to accurately and clearly document these in the type of official Will(s) that are suitable for purpose.
If Maureen and Reginald had entered into clearly documented Mutual Wills and had agreed the terms of their Wills benefitting all four children – and understood that these terms, within a Mutual Will, were irrevocable, their estate would not have been the subject of contested litigation.
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