Blended families, second (or third or fourth) marriages, and stepchildren are now a common occurrence. Estate planning for blended families with stepchildren is a delicate issue, and the source of many estate litigation disputes.
For example, we often see the following scenario: A will-maker has children from a first marriage. The children are now independent adults. The will-maker re-marries. He makes a will leaving everything or substantially everything to his new spouse. The new spouse promises to make a will leaving what is left upon her death to the will-maker’s children. What rights do the children have, and when should they assert them?
There are a number of potential issues here.
First, if a will-maker in British Columbia fails to make adequate provision for the proper maintenance and support of the will-maker’s spouse or child, the spouse or child may bring a claim to vary the will. However, a “child” does not include a stepchild who has not been formally adopted. As a result, the children in the above scenario could apply to vary their father’s will, but they would not be able to wait and bring a claim to vary their stepmother’s will after her death.
What about the stepmother’s promise that she would make a will leaving everything to her husband’s children? Can the children rely upon that promise as the basis of a claim?
The children may have a remedy if their father and their stepmother made “mutual wills”. When two persons agree to make mutual wills, they agree that once the wills are made that no changes may be made by either party without the other party’s consent, and when one person dies the surviving party cannot change the disposition made in their will. The fact that the father and stepmother had identical wills at the time of the father’s death (which would be “mirror wills” ) is not enough. There must be clear and unequivocal evidence of an enforceable agreement between the parties that the survivor cannot not change their will after the death of the first person.
If the parties did not have “mutual wills”, and the stepmother has simply made a promise to make a will leaving her estate to the children upon her death, then the children may still have a remedy. If the children rely upon the stepmother’s promise and as a result agree not to bring a wills variation claim in relation to their father’s estate (because they will eventually receive the assets any event), then the court may find that there was an enforceable agreement between the parties, or that the children are otherwise entitled to enforcement of the stepmother’s promise.
All of this may be further complicated if the stepmother has her own children, mixes the father’s estate with her own assets, or spends or gifts away the father’s assets during her lifetime, and so the children may be better off making a wills variation claim at the time of their father’s death to avoid the future uncertainty and risk. A child in this situation will want to carefully consider their rights (and strongly consider obtaining legal advice) at the time of their parent’s death, rather than waiting until the stepparent’s death.