Can Stepchildren Challenge a Will?

When it comes to Wills and Estates, each case is different. To ensure you have the best options, receive expert advice from an experienced lawyer.
When it comes to Wills and Estates, each case is different. To ensure you have the best options, receive expert advice from an experienced lawyer

In today’s world there are so many types of ‘modern families,’ with second marriages, adoption, foster children and anything in between becoming ubiquitous. Considering the amount of growing blended families over the years, it’s not an uncommon question to hear, “Can a stepchild or stepchildren challenge a Will?”

What does Victorian Law Say?

Rights of stepchildren vary slightly across each state in Australia. Previously, Victoria used to be one of the most flexible states in Australia for making a claim against a Will, as eligibility to contest a Will was not specified.

However, on January 1st, 2015, legislative reforms became effective, detailing eligible people who could contest a Will. A list of eligible people who can contest a Will is provided in the Administration and Probate Act 1958 (Vic) s 90(c), which governs an eligible person’s right rights in relation to Wills and Estates. This list includes:

  • A spouse or domestic partner (registered or unregistered at the time of death)
  • A registered caring partner
  • Adult children
  • A grandchild
  • A person who was (and was likely to be in the near future) a member of the deceased’s household
  • A child of the deceased (including adopted or stepchild, or someone who believed the deceased to be their parent and was treated as such) who at the time of death was:
  • Under the age of 18 years old;
  • A full-full time student under the age of 25;
  • Or suffering from a disability.

What Factors does the Court consider with the rights of a Stepchild?

Essentially, stepchildren are considered eligible people when it comes to contesting a Will but there are variable factors the court will take into account before ruling in their favour which include:

  • Closeness of the relationship between the stepchild and step-parent
  • Age of the stepchild and at what time they become a member of the family and
  • The level of financial, educational and emotional support the stepchild depended on from the deceased.

Example of a Court Case involving Stepchildren

Every court case is different depending on your individual circumstances, which is why its best to consult a lawyer to ensure you have a reliable claim to make. Here is a famous example of a court case in Victoria where a stepchild was successful in making a claim to a Will:

Bail v Scott-Mackenzie 2016 – This case showedthat the death of a natural parent does not cease the relationship between a step-child and step-parent. Additionally, it demonstrated that a natural parent and new partner do not have to be married for the new partner to be considered a ‘step-parent.’

What happened? Here the plaintiff’s mother, Ms Holmes, had been in a relationship with her domestic partner for 40 years. When the plaintiff’s mother, Ms Holmes, died, her domestic partner later commenced a new relationship with another woman who he remained with until his death in 2016. In his Will, the deceased left everything to his new partner. The dispute was whether, legally, the plaintiff was to be considered a stepchild despite her mother and the deceased never being married. The plaintiff was successful in her application with the judge ruling that a ‘stepchild,’ includes the child of a domestic partner as well as a child whose natural parent in a de facto relationship dies before the remaining step-parent instead of separating from them.

At Le Brun & Associates, we understand that life circumstances and family relationships can be unpredictable. That’s why we provide a FREE 30-minute consultation with one of our fully qualified and professional lawyers to discuss the best options for you.

If you need caring, compassionate advice or more information on your rights as a stepchild or step-parent, our experienced and compassionate family and property lawyers can advise you on sensitive matters and are dedicated to supporting you with accurate, fast and cost-effective advice.

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