Can Step-Children Challenge a Will?
As it stands, 1 in 3 marriages are ending in divorce. Thus, blended families with complex family structures which include one or more step-children are becoming increasingly common throughout Australia. This has caused an increase in the number of step-children challenging Wills.
The rights of step-children vary slightly in each State. For example; in NSW step-children are only eligible if they can prove that they were dependent on the step-parent who passed away and shared a residence with them at the time; and in WA, a step-child must have been wholly or partly maintained by the step-parent immediately before the deceased’s death, or the deceased must have received or was entitled to receive property from the parent of the step-child to a value greater than $460,000.
In Victoria, the Administration and Probate Act 1958 (Vic) s 90(c) provides the law which governs step-children and their rights in relation to Wills and Estates. The good news for step-children is that a step-child and a child are both treated in the same way for the purpose of contesting a Will.
To be classified as an eligible person both a step-child and a child needs to be either one of three things (i) under the age of 18, (ii) a full time student under the age of 25, or (iii) suffering from a disability; or be [an adult] child or step-child of the deceased not referred to in paragraph (b) or (c). i.e. just be a child or a step-child of the deceased and you are eligible.
The Two Big Questions – Critical Case
1. Does my natural parent and my parent’s new partner have to be married for the new partner to be considered my step-parent?
2. Do I cease to be my step-parent’s step-child on the death of my natural parent and therefore become illegible to dispute my step-parent’s Will?’
The very recent Victorian case of Bail v Scott-Mackenzie demonstrates both of these questions in operation. Here, the plaintiff’s mother was a domestic partner of the deceased for 40 years prior to her death 15 years ago. The deceased’s Will did not provide for the plaintiff. The plaintiff argued that ‘step-child’ under the Administration and Probate Act should be given a wide meaning to include the children of domestic partners and that the status of a step-child does not cease when the natural parent dies. As a result, she should be considered the step-child of the deceased and an eligible person to whom the deceased failed to make adequate provision.
The plaintiff was successful in her application. The court determined that step-child includes the child of a domestic partner, as well as a child whose natural parent in a de facto relationship dies before the remaining step-parent.
With regard to the first issue the trial judge applied statutory interpretation. He looked to the Oxford Dictionary Meaning of ‘step-child’ and then to the Explanatory Memorandum (EM) of the Administration and Probate Act 1958 (Vic). The dictionary stated that ‘step-child’ includes the child of a domestic partner, and the EM stated that the (then) new inclusion of the term ‘step-child’ opposed to only a ‘child’ pointed to an overall expansion of the meaning of who can benefit under a will. Thus, His Honour came to the conclusion that expanding the definition of ‘step-child’ to ‘child of a domestic partner’ is reasonable in the circumstances.
With regard to the second issue of whether the term ‘step-child’ persisted after the plaintiff’s natural mother’s death, His Honour looked to s 40A(3) of the Succession Act 1981 (Qld) as there is no similar provision in Victorian legislation. Here, it states that a person’s status as a stepchild does not end merely due to the death of a step-child’s parent, and because the relationship between the plaintiff’s natural parent and step-parent did not dissolve by means of a break down, the plaintiff was to be considered a step-child within the meaning of the Act.
Bail v Scott-Mackenzie  VSC 563 demonstrates the law’s changing perspective on domestic partnerships and blended families. It is clear that the definition of step-child now includes the child of a deceased’s domestic partner and that the death of a natural parent will not stop a step-child from disputing a Will so long as the relationship was undissolved at the time of the death of the natural parent.