Can Stepchildren Contest a Will?
In today’s modern society, increasing divorce rates has seen a rapid rise in blended families, complex family structures, and stepchildren/stepparent relationships. And while many families make it work and live quite amicably or even happily, if one of the partners of a blended family was to die, what happens to the rights of the all the children? As an experienced family lawyer, Vermont families have trusted Robert Wood and Associates for professional advice on a wide range of family law matters for over 30 years. Here we will take a closer look at stepchildren and whether they have the right to contest their stepparent’s Will.
Eligibility to Contest a Stepparent’s Will in Victoria
A stepchild who feels that their stepparent has inadequately provided for them in their Will has a right to contest the Will in several Australian jurisdictions, including in Victoria, however they must meet stringent eligibility criteria. Under Victorian Law there are limitations to the types of persons that can contest Wills. The applicable succession law in Victoria is the Administration and Probate Act 1958. Under this legislation, a stepchild can only contest a will if they are:
- under the age of eighteen,
- a student who is under the age of twenty-five,
- or a disabled child.
An adult stepchild who does not fit into the above criteria must demonstrate financial difficulty in order to contest their stepparent’s Will.
Considerations the Court Will Make
Once deemed eligible, an application for a family provision can be made to the Supreme Court. If the application is successful, the court can order a redistribution of the deceased estate to make an appropriate provision for the claimant.
The Court will take into account a range of factors which may include:
- The stepchild’s relationship with the deceased.
- The age the claimant became a stepchild.
- The level of dependence between the stepchild and the deceased.
- Whether the deceased’s Will and/or Intestacy fails to make proper provision for the stepchild.
What If the Natural Parent and His or Her Partner Are Not Married?
Traditionally the definition of stepchild depended on a marriage between the natural parent and the stepparent, however, in Victoria a stepchild is not defined. Therefore, the term ‘stepchild’ encompasses the child of a domestic partner, married or not.
What Happens When the Natural Parent Passes Away?
A stepchild’s relationship to their stepparent is enduring. This means that if the natural parent dies whilst married to or in a domestic partner relationship with the stepparent, the child’s status of ‘stepchild’ does not end.
What Happens in the Event of a Divorce or Relationship Breakdown?
If the natural parent and the stepparent divorce or separate, the stepchild/stepparent relationship does in fact come to an end under common law. This is because the basis of the relationship is dependent on the relationship between the natural parent and the stepparent.
Stepchildren do have the right to make a family provision claim on the Estate of their stepparents, as long as they can establish eligibility. Each family is different, and as such, eligibility will depend on the individual circumstances of each case.
Get in Touch with the Lawyer Ringwood Families Rely On
As an experienced estate dispute solicitor, Melbourne’s Robert Wood and Associates are here to help with expert legal advice to help you determine eligibility before pursuing a claim to contest a Will. If you have stepchildren and you want to understand their rights or if you are stepchild and you feel you have been inadequately provided for, reach out to our team today online or by calling (03) 9762 3877 today.
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