Family Law
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Step-children and Wills

Recent amendments to the Victorian Administration and Probate Act 1958 have made it possible for step-children, who have been left out of a step-parent's Will to seek further provision under Part IV of the Act.  

Procedure before Amendment  

Prior to the amendments, the legislation did not define who an eligible person might be for the purposes of seeking further provision under a Will. The relevant section of the legislation contemplated but did not specify step-children as being eligible to claim. The Court had to consider previous case law and the matters set out in the legislation to determine whether a step-child should be entitled to further provision. One of the leading cases, before the amendments to the legislation were enacted, was James v Day [2004]. In that case, Cummins J, said that to make a decision, he must consider:

  • Whether the deceased had a responsibility to make provision out of her Estate for the proper maintenance and support of either or both of her step-children; and if so,
  • Whether adequate provision for the proper maintenance and support of the respective step-child had been made out of the Estate; and if not,
  • The amount to be ordered for such provision.

In considering these questions, Justice Cummins had regard to a list of considerations which were set out in the earlier legislation and to the general common law.[1]

Procedure after Amendment  

Since the amendment, step-children have been specifically included under the umbrella of eligible persons who can now apply for further provision from an estate, thus eliminating the need to prove they are an eligible person as per the criteria mentioned above. The leading case since the amendment is Bail v Scott-Mackenzie (2016). The plaintiff claimed that she was an eligible person as the deceased's step-child, because her mother was in a domestic relationship with the deceased for over 40 years.  The relationship between the plaintiff's mother and the deceased ended in 2001 following the death of the plaintiff's mother. The deceased subsequently commenced a new domestic relationship and executed a will in 2004 leaving everything to his new partner.  The two main issues in contention were:

  • Whether the plaintiff was the step-child of the deceased, even though her mother did not marry the deceased; and
  • If the plaintiff was indeed found to be a stepchild of the deceased, then did that relationship continue after the death of his mother in 2001?

In relation to the first issue, the Court found that the Act does not discriminate between a spouse and a domestic partner in the context of who is an eligible person to make a claim against an estate. This, when combined with the explanatory memorandum accompanying the legislation (which supported a broad interpretation of step-child), was sufficient for the Court to conclude that the Act intended the meaning of step-child to include children of domestic partners as well.  With regards to the second issue, the Court decided that if the marriage remains undissolved at the time of death of the natural parent, the relationship of affinity between step-parent and step-child will continue.  The relationship between the plaintiff's mother and the deceased was only severed due to the plaintiff's mother's death and not through a formal legislative instrument such as a divorce or annulment. As a result, the plaintiff was held to be stepchild of the deceased and consequently, an eligible person under the Act.  If you feel you may be entitled to some part of your late step-parent's estate, please call our Wills and Estates team at Hutchinson Legal, to discuss your situation.

[1] The test is that of the standards of a wise and just testatrix, or in other words of a fair and reasonable woman in the community (White v Barron & Anor (1980) 114 CLR 431 at 440 per Stephen J) and is applied as at the date of death (Coates v National Trust Executors and Agency Co Ltd & Anor (1956) 95 CLR 494 at 508 per Dixon CJ).

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