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Herrington Carmichael: Can a Stepchild contest a Will or Inheritance?

You may have seen the inheritance tiffs surrounding the (estimated) $100 million estate of Robin Williams or the $500 million estate of Prince, who shockingly died without a Will!

Perhaps, you have heard of the ill-fated life of Anna Nicole Smith (a famous American model, actress, and television personality from the 90s), which attracted two estate disputes; firstly, by Anna herself, when her 89 year old husband died leaving his entire estate to his son and several charities, and secondly, when Anna herself sadly passed away at the age of 39. There were many twists and turns in this case, with one judge, at one point, ruling in the favour of Anna’s stepchild.

Can a stepchild contest a Will?

Yes. The Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) sets out the law which allows a Court to alter the distribution of a deceased person’s estate, if they have failed to make ‘reasonable financial provision’ for certain people. The key to making a claim under this Act is that you must fall within the category of people entitled to bring a claim, namely: a spouse, a former spouse, a person cohabiting with the deceased for at least two years before they died, a child, a child treated as a child of the family, or any other person who may have been financially dependant on the deceased before they died. A stepchild could, therefore, legitimately bring a claim as ‘a child of the family’ under the terms of the Act if they can prove that they have not been adequately provided for under the terms of the Will.

What is reasonable financial provision?

The Courts will objectively consider various factors when determining a claim under the Act including, not just the financial needs of the stepchild bringing the claim, but the needs of all beneficiaries named in the Will. The Courts will play a balancing act between the competing needs of all beneficiaries, whilst considering the size and nature of the deceased’s estate.
There are other grounds on which a stepchild might decide to contest a Will. They could opt to challenge the validity of a Will as a result of undue influence, lack of testamentary capacity or by claiming that the deceased did not know and approve the contents of their Will at the time it was made.

These days, it is a common scenario where a parent-couple divorce, remarry and then place complete trust in their new spouse to ‘do the right thing’ when they die, making sure that their estate passes to the children from their previous marriage. Unfortunately, we then often see the ‘new’ spouse leaving their entire estate to their own children, cutting out the stepchildren altogether (whether intentionally or not). To avoid such a situation arising, it is important to seek legal advice when preparing your Will in order to protect your estate for your ultimate beneficiaries.

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