Step-Child’s likely Success in a Will Contest

The law

Since the 2014 amendment to the Administration and Probate Act 1958 (Vic) (‘the Act’) step-children can apply for further provision from the Estate in the same manner that biological children can.

The case of Bail v Scott-Mackenzie [2016] elaborated on this change, holding that step-child as listed in s 90 of the Act includes the child of a natural parent’s domestic partner. Further, 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.

Evidentially, a step-child’s eligibility to contest a Will is no longer questioned, instead cases regarding step-children turn on the elements listed in s 91A;  especially the relationship between the step-parent (deceased) and the plaintiff, the financial resources of the plaintiff and all other beneficiaries, the size of the Estate and whether the plaintiff was maintained by the deceased at any point in time.

Traditionally, if a child has not been maintained by the deceased at any given point of time/has not lived with them, and is currently financially stable, it has been hard to argue that the step-parent has a moral obligation to provide. However, the case of Smith v Thwaites suggests differently!

Case Study – Re Williams; Smith v Thwaites [2017].[1]

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.


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 loco parentis (parent/child like).

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. This being that although currently financially stable, she is unlikely to be able to provide for any future vicissitudes 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[2] that a step-parent owes a responsibility to provide for their stepchild when the stepparent has been left the entirety of the Estate of the natural parent. Nettle J in that case regarded the argument as novel, but accepted it ‘up to a point’ as ‘children of the first marriage should rank for their fair share, as once the widow is gone, and therefore no longer in need of provision, her needs no longer warrant the children rank behind her and thus her chosen successors’. The judges in Smith v Thwaites did the same.

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.


Put simply, Smith v Thwaites demonstrates that:

  1. Just because the step-child does not/never did live with their step-parent this does not necessarily bar their claim.
  2. Although novel and not listed in s 91A of the Act as an ‘official’ element, whether the step-child has been provided for in the past by their natural parent is something to consider.
  3. When assessing the financial status of the step-child, look to their expected future expenses too and whether the provision will provide for any ‘contingencies’.

For more information on the rights step-children have to Challenge or Dispute a Will, do not hesitate to contact the team at Hentys Lawyers today for your free, initial consultation.

[1] Re Williams; Smith v Thwaites [2017] VSC 365

[2] McKenzie v Topp [2004] VSC 90