Can a step-child contest a Will?

In Victoria, if you have been inadequately provided for in a Will or left out entirely, you may have the option to make a Family Provision claim, otherwise known as a Part IV or a Testator’s Family Maintenance List claim under the Administration and Probate Act 1958 (VIC) (‘the Act’).

Is a step-child eligible to contest a Will?

Under the Act, an application for a family provision order may only be made by, or on behalf of, an eligible person. Under section 90(c), a step-child is defined as an eligible person to contest a deceased’s Will if that are:

  • under the age of 18 years; or;
  • a full-time student aged between 18 years and 25 years; or
  • a step-child with a disability.

Otherwise, section 90(f) applies to cover all other step-children who do not fall into the above criteria. In short, step-child is eligible to contest a Will under s 90.

Who is a step-child in a Will contest case?

As ‘step-child’ is not defined under the Act, common law has evolved to consider that a step-child is the natural child of a parent who was the spouse of, or in a domestic partnership with, the deceased.

This definition of step-child extends even to when the natural parent has passed away before the deceased. The case of Bail v Scott-Mackenzie [2016] established this precedent and held that the death of a natural parent does not bar a step-child’s claim, so long as the relationship of the natural parent and step-parent was undissolved at the time of the death of the natural parent.

Approach to claims in Will contesting

When assessing the strength of a step-child’s claim to the Estate and the moral obligation the deceased to provide for the step-child in their Will, the court will consider the following:

  • the age at which the relationship was assumed;
  • the extent of other existing provision for the applicant;
  • the actual degree of dependence;
  • the extent to which responsibility for maintenance and advancement has been assumed by the deceased.

There are also other factors to be considered in these cases. For example, the children of the first marriage may have stood aside to allow a deceased spouse to make provision for the surviving spouse. This fact may be relevant to the question the court has to answer, but it is really only one of the matters to be considered by the court.

In the case of step-children, however, there are two circumstances of special relevance to be considered, namely:

  • whether the step-parent’s assets have been derived in part from the funds or resources of the natural parent of the step-child; and
  • where there are both natural children and step-children, whether the relationship between the applicant and the deceased was such that a lesser provision should be made for the step-child.

However, in most circumstances, an applicant who was a step-child will be treated like any other child and the usual tests of need, moral claim, competing claim, and other circumstances will be taken into account in determining what is adequate provision for the step-child and the moral obligation of the deceased to provide.

Case Study – Re Willians; Smith v Thwaites [2017]

It is always useful to see how these principles apply in practice and Smith v Thwaites provides a good example of the different considerations the court takes into account when assessing a Further Provision claim by a step-child.

Case Facts

The deceased died and was survived by three natural children and three step-children, one of whom was the plaintiff. The plaintiff’s father had pre-deceased her step-mother and left the entirety of his Estate to her as it was small.

In the Will, the deceased left a quarter share of the residue of her 1.4-million-dollar Estate to the plaintiff, which came to $38,756. The balance was left to the deceased’ three children. The plaintiff was after further provision, ideally a quarter share of the entire Estate.

Court’s Considerations

The plaintiff never lived with her step-mother and was never maintained by her. She visited her step-mother and father in the normal course on weekends and weekdays where possible and although not close, maintained an amicable relationship with her step mother. It was not a relationship that could be characterised as akin to a mother/daughter relationship.

Despite this, the court held that the plaintiff was entitled to further provision.

In making their orders, the Court primarily considered the financial situation of the plaintiff and in something slightly left of centre – the provision (or lack of) made by the plaintiff’s father.

It was found that the amount bequeathed by the deceased would not be adequate for the plaintiff’s proper maintenance and support in light of her financial resources if they were to consider significant unknown future contingencies. It was considered that she would be unlikely to be able to provide for any future changes for her proper maintenance and support from her own resources.

Regarding the father’s lack of provision, they cited the argument put forth in McKenzie v Topp that a step-parent owes a responsibility to provide for their step-child when the step-parent has been left the entirety of the Estate of the natural parent.

Thus, it was held in Smith v Thwaites that the deceased had a moral duty to provide for her step-child, which she acknowledged by leaving the quarter share, but that share was not enough to be considered adequate. The court awarded the plaintiff an extra $100,000 – making a total of $138, 756. Importantly, the plaintiff was not awarded the quarter share of the Estate as desired, mainly as it would go directly against the testamentary wishes of the deceased which was that her three biological children would receive the property as it came from an earlier marriage.

If this article has brought up any queries or you’re interested in contesting a will, please don’t hesitate to contact our estate lawyers.