Case Study: Death of a Natural Parent before a Stepparent does not bar a Stepchild’s Claim

The recent Victorian case of Trembath v Trembath[1] cements the decision in Bail v Scott Mackenzie[2] that the death of a natural parent before a stepparent does not bar a stepchild’s claim to further provision, so long as the relationship of the natural parent and the stepparent was undissolved at the time of death of the natural parent.


The question of whether a child can still be considered a ‘stepchild’ at the death of a natural parent came about since there is no definition of ‘stepchild’ in the relevant Victorian Act.

In the case of Bail v Scott Mackenzie, legislative history of the 2014 amendments to the Act which introduced the requirement that an applicant be an ‘eligible person’ within certain categories was examined, in addition to all relevant extrinsic materials including the Second Reading Speeches, the debates that the Bill was intended to and the Explanatory Memorandum.

From this, they decided that the Bill was envisioned to “reflect modern community expectations” however, no definitive statement as to whether a stepchild remains a stepchild within the Act after the death of his or her natural parent was made, nor was there even any reference to that situation.

As a result, Associate Judge Derham then turned to s 40A(3) of the Succession Act 1981 (Qld) where it explicitly states that a person’s status as a stepchild does not end merely due to the death of a stepchild’s parent, so long as the relationship did not end prior to the natural parent’s death. The judge found this QLD definition persuasive, and held that the meaning of stepchild within the Victorian Act should be widened to include the same. Hence, the plaintiff in Bail v Scott Mackenzie was successful.

Trembath v Trembath


The facts of Trembath are as follows: The plaintiff sought further provision from the Estate of Olga Trembath who he described as his stepmother. The defendant however contended that the plaintiff had no real prospect of success in establishing that he was Olga’s stepchild at the date of her death, since his father had pre-deceased her.

The council for the defendant submitted that at law, the death of the plaintiff’s father ended the relationship of stepchild/stepparent between the plaintiff and Olga. He relied upon a series of cases determined in Queensland, and then followed in Tasmania before the amendment, which held that a person who was a stepchild of the spouse of his or her natural parent ceases to be one when the marriage ends; whether that is by divorce or death.

Further, Council noted that in accordance with the Doctrine of Precedent, the decision in Bail v Scott Mackenzie was not to be binding on Associate Judge Landsdowne’s decision, since the impugned issue was not determined by the Court of Appeal.

The plaintiff obviously disputed this, relying heavily on the holdings in Bail v Scott Mackenzie and reminding that Court that although the Court of Appeal did not decide the issue that arises in this application, it cited the conclusion reached by Associate Judge Derham with apparent approval.


The issue of whether the plaintiff is eligible for further provision was not a preliminary question at trial, but an application for summary judgement. Summary judgement is enabled to be granted on the basis that the plaintiff’s claim has ‘no real prospect of success’.

Associate Judge Landsdowne held that the applicant for summary judgement failed to show that the respondent had no real prospect of success in establishing eligibility as a step child, and that good policy reasons exist in allowing a claim by a stepchild whose natural parent predeceased the stepparent.

Further, he found a distinction in the previous cases introduced by the Council for the respondent between consequences of termination of marriage between the natural parent and stepparent by death as opposed to divorce.

As a result, Associate Judge Landsdowne supported Associate Judge Durham’s decision in Bail v Scott-Mackenzie, and the application for summary judgement wad dismissed.


Bail v Scott-Mackenzie demonstrated the law’s changing perspective on blended families. Now, since Trembath it is even clearer that the death of a natural parent will not stop a stepchild from contesting a Will.

For more information regarding the definition of ‘stepchild’, or if you think you have the right to dispute a Will, please do not hesitate to give our team of experienced Estate Lawyers a call for your free, initial consultation.

[1] [2017] VSC 369

[2] [2016] VSC 563