When the Brady Bunch first aired in 1969, it brought the concept of a ‘blended’ family into the public consciousness. Although ‘blended’ families – that being a family consisting of a couple, the children they have had together, and their children from previous relationships – are by no means a new concept, they raise a number of interesting questions with regards to Estate law and Contesting wills.
Running with the example of the Brady Bunch, what would happen if Mike and Carol Brady wanted their respective biological children to inherit from only their Estates, and not the other’s?
Family Provision Claims
The most obvious impediment to Mike and Carol Brady is the possibility for Family Provision Claims being brought against them by their non-biological children. Even though their Wills may state an intention that only the biological children inherit from each of their respective Estates, the very fact that the children were legally the children of each of the parents, as well as the innate fact of dependency arising from being a child of someone, the ‘blended’ Will may find itself being… Well, blended.
This being said, when determining Family Provision Claims, Courts are often asked to look at the ‘bigger picture’. Although some of the children may have been effectively cut out of the Will, they still stand to inherit from the other parent. Where the Estates of the two parents are equal in value, it may be difficult for the children to argue that they stand to be deprived of a benefit under one Will.
Similarly, it may be difficult to maintain this sort of Estate arrangement where one spouse stands to inherit from the other – if one predeceases the other, the biological children of one stand to gain more than the biological children of the other. In order for our hypothetical Brady Bunch Will to work, it may be necessary to prevent the spouses from inheriting one another’s property!
As we can no doubt imagine, Mike and Carol Brady would be appalled with the idea of depriving one another of the benefits of their respective Estates – and, overwhelmingly, so would other couples in ‘blended’ families.
Fortunately, the Courts are no stranger to this phenomenon, and have so created the idea of a ‘mutual will’. Mutual Wills are a binding agreement on both you and your spouse to pass on the benefit of your Estate to your intended beneficiaries. While on its face, this does not appear to be any different from simply having two Wills, the Mutual Will’s strength lies in the fact that if one partner predeceases the other, the surviving partner will still be able to enjoy the benefit of their Estate, on the condition that he or she ensures the deceased’s assets are still reasonably preserved for the benefit of the children of the deceased’s prior relationship.
Although your surviving partner is relatively unrestricted with regards to how he or she spends your Estate, Mutual Wills allows a Will-maker (‘Testator’) the power to impose certain conditions ensuring that the size of the Estate is left at a particular level. For example, a Mutual Will may provide that the Estate of $1 million may be used for the surviving spouse’s benefit, provided that at least $800,000 of that Estate is passed on to the deceased’s intended beneficiaries. These conditions can be tied to particular properties, or just the Estate as a whole.
“Marcia, Marcia, Marcia!”
Naturally, with complex families comes complex Estate arrangements, and as with any Estate arrangement that doesn’t fit within the confines of a simple Post Office ‘Will Kit’, it is often the best course of action to consult with an Estate Professional.