There is no denying that modern family life is constantly evolving. The traditional family structure of a married heterosexual couple with 2.4 biological children is not as commonplace as it once was. The “blended” and “cohabiting” family model with children from previous marriages, a rise in second (and sometimes third and fourth) marriages, civil partnerships and couples opting not to get married at all are becoming more and more commonplace. Developments in society and technology also mean that families may be spread out across the globe and/or involve different ethnicities, sexualities, backgrounds and cultures.
The changes in family structures means that good estate planning is more important than ever before. The complexities of the modern family unit have resulted in a significant increase in the number of disputes arising after death.
The recent decision in McLean & Ors v McLean offers an interesting insight into how the “blended” family can become locked in a bitter and costly dispute after death and how important careful estate planning and communication can be in mitigating the risk of such litigation.
The facts of McLean are sadly not uncommon in the modern world of contentious probate.
Maureen was married to Reginald, and they had one child together, Brett McLean (a self-proclaimed “Lord”). Reginald had three children from his previous wife. Maureen and Reginald made Wills in 2017, which provided that all four children would share the estate, including the house, in equal shares on the death of the second of them to die. On Reginald’s death, the estate passed to Maureen in accordance with the terms of the Will. Shortly before her death in 2019, Maureen changed her Will to disinherit her stepchildren and leaving the estate to her only biological child, Lord Brett.
The stepchildren challenged the Will on the basis that Maureen and Reginald had reached a legally binding and irrevocable agreement in respect of the 2017 Wills and, as a result, Maureen was not free to dispose of her estate as she later chose, relying on the doctrine of “mutual wills”.
Where two parties enter into a mutual will, they agree that the terms of their Wills cannot be changed without the other person’s consent such that when one of them dies, the Will cannot be changed at all. Mutual Wills can therefore offer reassurance to a testator who wants to prevent their partner disinheriting children from a previous relationship in the event that they die first. They are, however, relatively uncommon in practice as practitioners are reluctant to encourage testators to dispense entirely with any future testamentary freedom or flexibility.
The evidence of the solicitor who prepared the Will was that Maureen said words to the effect that she would not change her will or disinherit her stepchildren, and that she trusted her husband implicitly.
Irrespective of this evidence, the Judge concluded that Maureen had been free to enter into her later Will and that, whilst she may have been morally bound not to alter the terms of the 2017 Wills, this did not amount to a legally binding contract (ie a mutual will). This decision reflects the importance placed by the Courts of England and Wales on testamentary freedom and the requirement for extremely persuasive evidence that a testator has entered into a mutual will and effectively agreed to give up their right to change their Will at a later date.
Lessons from McLean and top tips for the blended family
The facts of McLean are all too familiar to contentious probate practitioners: Maureen’s stepchildren were entirely excluded from benefitting from their father’s estate as a result of actions taken by their stepmother after his death which sought to benefit Maureen’s only biological child.
In our experience on similar cases, and other disputes involving blended families, the best way of avoiding litigation arising out of your estate is through careful estate planning and clear, open lines of communication between spouses/partners, children and their legal advisors. If Maureen and Reginald had decided to enter into mutual wills and agreed that the terms of their agreement to benefit the four children were irrevocable, the estate would not have been the subject of contested litigation proceedings and Reginald’s wishes would have been upheld.
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