27 Jul Can my stepchildren contest my will?
Can my stepchildren contest my will?
Under Victorian Law there are limitations to the types of persons that can contest wills. These days with the increasing divorce rates there are more and more “blended” families and hence stepchildren. Does a stepchild have standing to challenge a will? The simple answer is yes. Stepchildren may have rights to an inheritance. But what about if their natural parent who was living the step parent has already passed away?
What if the step parent is no longer around?
The 2016 case of Bail v Scott-Mackenzie [2016] VSC 563 considered this question and also found that it is possible to have standing to challenge a will if the stepchild is no longer in the household.
In this case, the step child’s real mother (her natural parent) had been in a defacto relationship for over 40 years. Following the death of her mother, the deceased commenced a new domestic relationship and remained in this relationship until his death in 2016. In 2004, the deceased executed a will which left everything to his new partner.
The dispute was about whether legally she was not a “stepchild” and therefore not an eligible person to claim. Technically you would say that she was no longer a stepchild after her mother died as the mother and step father’s relationship came to an end.
To sum up the Judge’s words below, it is still possible to have standing to lodge a claim if you are a stepchild but the relationship between natural parent and step parent has ended due to death.
Summary of Judge’s findings in the case of Bail v Scott-Mackenzie
“It is my view that the inclusion in the definition of ‘eligible person’ in s 90 of the Act of a domestic partner of the deceased at the time of the deceased’s death, with equal status to a spouse, is an indication that the legislature may have intended that stepchildren of domestic partnerships should be encompassed in the meaning of stepchild. The doubt or ambiguity as to the legislative intention is resolved by the explanatory memorandum accompanying the introduction of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014. That explanatory memorandum is an aid to the interpretation of the term in the Act because it indicates a legislative intent to embrace the wider meaning of ‘stepchild’ as including the child of a parent who was in a domestic partnership with the deceased.
By analogy with the common law position of a stepchild of a marriage, the relationship of stepparent and stepchild of a domestic partnership for the purposes of Part IV ends if, before the death of the deceased, the domestic partnership ends otherwise than by the death of the parent. That is, if the domestic partnership ends by complete separation, or what might loosely be called dissolution.
But, if the domestic partnership remains undissolved at the time of death of the natural parent, again by analogy with the position at common law, the relationship of affinity between stepparent and stepchild continues.
Thus the plaintiff in this proceeding is an eligible person.”
Where do I stand?
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