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Court Affirms Broad Scope for Estate Claims by Stepchildren

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By Deborah Kliger, Lawyer, MST Lawyers

In a recent landmark decision, the Supreme Court of Appeal reaffirmed the modern and inclusive definition of a ‘stepchild’ eligible to bring an estate claim. It is now firmly established that the child of a deceased’s domestic partner is a ‘stepchild’, and is eligible to challenge their step-parent’s Will. This means that a child’s natural parent does not have to be married to the deceased for the child to be recognised as the deceased’s stepchild.

The original Victorian Supreme Court decision

In an article published in February 2017, we reviewed the original decision handed down by Associate Justice Derham.  In summary, the plaintiff was the daughter of Ms Holmes, the deceased’s former domestic partner for over 40 years. The relationship endured until Ms Holmes’ death. The deceased later commenced a domestic relationship with Ms Rooke, leaving his entire estate to her.

The plaintiff, who alleged she was a stepchild of the deceased, brought a claim for provision from his estate. Ms Rooke maintained that the plaintiff did not, at any time, attain the status of a stepchild as her mother and the deceased were never married. Associate Justice Derham ruled that the term ‘stepchild’ included a child of the deceased’s domestic partner. Accordingly, his Honour found that the plaintiff was a stepchild eligible to apply for provision out of the deceased’s estate.

The appeal

Ms Rooke appealed the decision, alleging his Honour was mistaken in finding the plaintiff was a stepchild of the deceased. The appeal was heard by three Supreme Court Judges who unanimously upheld the original findings of Associate Justice Derham. In dismissing Ms Rooke’s application, the presiding Judges made the following key points:

  1. The ordinary meaning of ‘stepchild’ is one that is capable of changing over time. Domestic partnerships can, and often do, have the appearances and qualities of marriages. Parliament has recognised domestic partnerships as a valid alternative to marriage.
  2. The Administration and Probate Act 1958 (Vic) (“the Act”) does not discriminate between spouses and domestic partners. Spouses and domestic partners alike are eligible to bring estate claims under section 90 of the Act. Accordingly, it is likely the legislature intended to accord equal treatment to children of spouses and domestic partnerships.
  3. The underlying purpose of the Act is to ensure that testators (will-makers) make adequate provision from their estate for family members (or others) for whom they are responsible. A deceased owes a moral duty to the child of his or her domestic partner.

For these reasons, the Supreme Court of Appeal declared that the term ‘stepchild’ is defined broadly to include the child of a deceased’s domestic partner.

What’s yet to come

The appeal decision only dealt with the threshold question of whether a child of the deceased’s domestic partner is eligible to claim family provision. The Court is yet to decide the provision (if any) the plaintiff should be awarded.

If you wish to apply for further provision from a deceased estate or for any other Wills & Estates enquiry, please contact our Wills & Estates team by email or by telephone +61 3 8540 0200.