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Estate disputes and step-children

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With the complexity of modern blended families, problems can arise in the following scenario.  There is a husband and wife with adult children.  One parent dies and the surviving parent remarries.  The surviving parent then dies and leaves his or her estate to the new spouse.  When the new spouse dies the estate is left to his or her own children or to someone else.  What responsibility does the step-parent have to his or her step-children?

Recent cases in the Supreme Court of Victoria appeared to establish a principle that there was a right for a step-child to trace or claim their “family inheritance”.  The latest case of Robertson v Koska [2010] VSC 134 (16 April 2010) steps back and says that any contribution by the natural parent is just one of the relevant factors to be considered in justifying provision.

In this case four step-children made a claim upon the estate of their step-father.  Their mother had died five years earlier and all her assets passed to her second spouse.  The step-father made a Will leaving all of the assets to a cousin-in-law.

The estate was valued at $960,000.  The youngest step-child, who had been bought up by her late mother and her step-father, settled her claim before the hearing for $220,000.  The other three step-children were awarded $55,000 each out of the estate.

The decision illustrates the factors to be considered on a case by case basis in a claim for provision out of an estate.  A step-parent making a Will must consider his or her obligation to provide for step-children.  If no provision is made then a step-child must take into account all the relevant factors in assessing whether a claim can be made and the strength of that claim.

If you have any queries about your Will and Estate Planning or an Estate dispute, please contact one of our Wills and Estates lawyers.

Author: Paul Watkins