Home > News > Scope widened for Will challenges by stepchildren

Scope widened for Will challenges by stepchildren

Spread the love

By Deborah Kliger, Lawyer, MST Lawyers

On 1 January 2015 sweeping changes to the laws relating to the challenging of Wills were introduced in Victoria. Importantly, the amendments created new eligibility requirements for challenging Wills in circumstances where the will maker died on or after 1 January 2015. Accordingly, only applicants who fall within the categories of eligible claimants can challenge a Will.

A “stepchild” of the deceased is classed as an “eligible person” to make an estate claim under the Administration and Probate Act 1958 (“the Act”).  Unhelpfully, the term “stepchild” is not defined in the Act. 

In the Supreme Court case of Bail v Scott-Mackenzie [2016] VSC 563, Associate Justice Derham confirmed that a “stepchild” eligible to make an estate claim includes a child of the deceased’s domestic partner. 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” under the Act.

The facts:  

The deceased was the domestic partner of Ms Holmes for over 40 years. The relationship endured until Ms Holmes’ death in 2001.

Following Ms Holmes’ passing, the deceased entered a new relationship with Ms Rooke. The deceased died on 17 January 2016 leaving a Will dated 27 January 2004. By his Will, the deceased left his entire estate valued at $959,957.10 to Ms Rooke. Probate of the deceased’s Will was granted to Ms Rooke. 

Ms Holmes’ daughter (“the plaintiff”) applied to the Supreme Court for provision from the deceased’s estate under Part IV of the Act. The plaintiff asserted that she was the deceased’s stepchild and, as such, the deceased had a duty to provide for her proper maintenance and support. The plaintiff alleged the deceased gave her assurances that she would receive his estate and be “looked after”.

Ms Rooke (“the defendant”) sought to have the plaintiff’s claim dismissed on the grounds that it had no reasonable prospects of success. Specifically, the defendant maintained that:

  1. The plaintiff was not the deceased’s “stepchild” as Ms Holmes and the deceased were never married; or
  2. Alternatively, if a stepchild/stepparent relationship existed between the plaintiff and the deceased, that relationship was extinguished upon Ms Holmes’ death.

The issues:

The key issues for determination by Associate Justice Derham were:

  1. As a child of the deceased’s domestic partner, did the plaintiff classify as a “stepchild” of the deceased eligible to make a claim; and
  2. If so, did the relationship of stepchild/ stepparent endure after the death of the plaintiff’s natural mother, Ms Holmes.

Court defines “stepchild” broadly according to modern notions of family structures

Domestic partners are included as “eligible persons” to bring estate claims, with equal status to that of spouses. His Honour inferred that, in so recognising domestic partnerships, the legislature may have intended that the term “stepchild” be defined broadly to include a child of the deceased’s domestic partner.

His Honour held that a “stepchild” eligible to bring an estate claim includes a child of the deceased’s domestic partner. Accordingly, it was found that the plaintiff was a “stepchild” of the deceased and thus, eligible to bring an estate claim. 

His Honour confirmed that the death of a child’s natural parent will not, of itself, extinguish the stepchild/stepparent relationship between the deceased’s child and domestic partner.  The stepchild/stepparent relationship will only be terminated if, before the natural parent dies, the domestic partnership is dissolved by way of separation.

As the relationship between the deceased and the plaintiff’s mother Ms Holmes remained undissolved at her date of death, His Honour determined that the plaintiff was, and continued to be, the deceased’s stepchild even after her mother’s death.

Lessons learned

This case illustrates that the law is evolving to recognise domestic partners, and children of domestic partnerships, as having equal standing to married couples and their children.

A child of a deceased’s domestic partner falls within the definition of a “stepchild” eligible to bring an estate claim under the Act.

If the domestic partnership dissolves before a child’s natural parent dies, the relationship of stepchild/stepparent is extinguished and the child cannot bring an estate claim against the former domestic partner of their deceased parent.

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.