The law is pretty clear – which is why your Will should be, too

Lawyers are often criticized for nagging clients (and potential clients, and family members, and friends) about the importance of making a Will, but it’s really just that we know, better than most, the unfortunate consequences of dying intestate. And when you’re working with blended families, it can get even more difficult.

I was reminded of this the other day when I came across Peters Estate (Re), 2015 ABQB 168. Ileen and Lester Peters had been married for 43 years, with one biological child together. Lester Peters had four daughters from a previous marriage who became Ileen’s stepchildren. Lester died in 2009, so when Ileen died intestate four years later, their son inherited everything. The stepdaughters then applied to the court, seeking to have the estate divided equally among all five children.

In this case, it wasn’t surprising that the stepdaughters thought they were entitled to a share of the estate: The Peters had been married for many years. All the evidence indicated that Ileen had treated these daughters as her own. When their father pre-deceased Ileen, the daughters were fine with the bulk of his estate passing to her — falsely assuming that when Ileen died, they’d share in the combined inheritance.

Unfortunately, the law says that stepchildren who are not dependents — no matter how long-standing, loving, or truly blended the family is — do not enjoy the same rights as biological children when it comes to estates. So Lester’s four daughters were ultimately unsuccessful in court.

No automatic legal tie to stepchildren

StatsCan says blended families account for almost 13 per cent of all families with children in Canada and the number appears to be rising.

However, unless a stepchild is formally adopted by a step-parent, there is no legal tie created between step-parents and stepchildren, no matter how longstanding or harmonious the relationship with the biological parent. While there are laws which protect biological or adopted children when a parent dies without a Will, there are no such protections for stepchildren unless a dependent’s relief claim can be advanced. Which is why a properly executed Will that outlines what each biological, adoptive and stepchild is to inherit, is crucial.

Worth noting: Beneficiaries should be specifically named in all cases. A Will invoking stepchildren should not use terms like “children,” “descendants” or “heirs.” This can create ambiguity which can lead to conflict.

Late marriages and adult stepchildren

There are more late-life second marriages than there used to be. A widow or widower who remarries may not be aware that the new marriage revokes any previous Will they may made. The new spouse will inherit the bulk of the estate, which then passes to their children (the deceased’s stepchildren) — leaving the biological children out or with a smaller share of the estate than may have been intended.

Be realistic about how detailed the Will needs to be

One of the reasons people avoid making a Will, or make them too vague, is that it can be uncomfortable quantifying a relationship: “If I leave $X to my biological child but only $Y to my stepchild, will I hurt everyone’s feelings?”

But a nonexistent or vague Will is almost guaranteed to result in more hurt feelings and family unpleasantness than a thoughtful, detailed Will that leaves no doubt as to how the estate is to be distributed. And it costs a lot to sort those hurt feelings out in court (and the feelings don’t get sorted out!). After all, it makes it easier for all the kids to blame the decisions on the decedent.

Communication now means less court time later

As with most family law situations, communication is crucial.

Parents/step-parents may wish to make decisions about their estates without input from their children and stepchildren, but once those decisions are made, all the children should be clearly informed. This helps ensure no one is blindsided by a decision that can turn into an irremediable family rift.

We recommend that the conversation happens at least twice: Once, prior to making the Will, to let all the children know that estate planning is in process. This conversation can be useful in helping to identify any potential issues.

The second conversation should happen once the Will has been drawn up and executed. All children should know what they can expect from the estate. It’s generally our recommendation that parents/step-parents take the time to explain to the children why they’ve made the decisions they have. A simple statement like “I’ve left your stepsister the sterling flatware because she’s always admired it and kept it polished, and I know that you prefer modern design. So instead I’ve left you an extra $2,000” can prevent the kind of emotional distress that leads to legal fights.

Family relationships are complicated but the law on this isn’t

And that’s the key here: No one likes taking the time, energy and money to create a Will. But when it comes to stepchildren, the lack of wiggle room makes it particularly important to put clients’ wishes in writing.

This piece is slightly edited from the original which appeared in The Lawyers’ Daily. You can read it in context here.