Can my stepchildren challenge my Will?

In all states and territories of Australia, stepchildren either have an explicit or conditional right to challenge their stepparent’s Will. If you think there is a risk that your stepchild(ren) may make a family provision claim, this blog will answer some of your questions.

Many stepparent/stepchild relationships are very successful but there are some situations where a blended family arrangement ends up in court, especially when it comes to matters of inheritance. 

Often in succession law cases a stepchild may decide to challenge a stepparent’s Will if they have been excluded as a beneficiary under that Will and they believe that the deceased’s wealth was augmented by the stepchild’s natural parent and should therefore come to them.1  Alternatively, a stepchild may claim that a relationship of dependence existed between themselves and their stepparent,2 or the stepparent has a duty to provide them with a benefit from their estate.3

If a stepchild feels that they have been excluded unfairly from your Will, they may challenge it after you die. This can cause problems for your intended beneficiaries, and it could also mean that your estate is not distributed in the way that you want. 

If you plan to exclude your stepchild(ren) from your estate planning, you should seek legal advice to ensure you achieve your objectives. 

Who are my stepchildren? 

Your ‘stepchildren’ are the biological or adopted children of your spouse or de facto partner.  You do not need to be married for your partner’s child to be considered your stepchild. If you have adopted your stepchild, they become your child at law, and may challenge your Will in that capacity. 

Can my Will be challenged? 

The law varies from state to state but generally, claimants have similar grounds to dispute Wills across Australia.  There are two ways that your Will can be challenged: 

  1. Your Will is invalid, that is, the Will presented to the court was not your last Will; the Will was revoked; you lacked the mental capacity to make a Will; you did not understand what you were signing; or there was undue influence or fraud involved in the making of the Will; or 
  2. Your Will fails to make adequate provision for an ‘eligible beneficiary’.  In such cases, the disgruntled applicant will seek greater provision from your estate. These claims are known as ‘family provision’ claims and are the ones we will be focusing on in this article. 

Who can make a family provision claim? 

The law in each state and territory of Australia identifies who can challenge your Will, i.e. who is eligible to bring a claim.  The law that applies to your Will (the governing law) is usually defined in the Will itself.  A person cannot challenge a Will if they do not fall into one of the eligible categories. 

The following summarises the position of stepchildren wanting to make a family provision claim in Australia:

  Relevant Legislation General overview of conditions
New South Wales Succession Act 2006, Section 57(1) Stepchildren are eligible to make a family provision claim if they were a member of the deceased’s household at some point and wholly or partly dependent on the stepparent or if there were other factors warranting their eligibility. 
Victoria Administration and Probate Act 1958, Section 90(f) A stepchild can make a family provision claim if they are under the age of eighteen, a student who is under the age of twenty-five, or a disabled child. An adult stepchild who does not fit one of these descriptors may also contest their stepparent’s Will. 
Queensland Succession Act 1981, Section 41 Stepchildren are eligible to make a family provision claim. There are no specific conditions mentioned. 
Western Australia Family Provision Act 1972 , Section 6 Stepchildren are eligible if they were being maintained wholly or partly by the stepparent at the stepparent’s death. In WA, a stepchild also has the option to contest their stepparent’s will if the stepparent inherited property from the natural parent’s estate in an amount that exceeded the legally prescribed amount (currently $460,000). This prescribed amount does not include jointly held assets that passed to the stepparent through the rules of survivorship, such as a home held in joint tenancy.  NB the South Australian legislature is considering passing similar legislation. 
South Australia Inheritance (Family Provision) Act 1972, Section 7 (Please note at the time of writing, a new Succession Bill, 2022 is before S.A Parliament)  Stepchildren are eligible to make a family provision claim if they were being maintained wholly or partly by the deceased person at the stepparent’s death or legally entitled to some form of maintenance from the testator just before their death. 
Tasmania Testator’s Family Maintenance Act 1912, Section 3 A stepchild is defined to be a ‘child’ of the deceased and is therefore eligible to make a family provision claim.  
Australian Capital Territory Family Provision Act 1969, Section 3 Stepchildren are eligible to make a family provision claim if they were being maintained wholly or partly by the deceased person at the deceased person’s death. 
Northern Territory Family Provision Act, Section 5 Stepchildren are eligible to make a family provision claim if they were being maintained wholly or partly by the deceased person at the deceased person’s death.

 

If you are worried that your stepchild(ren) or other close family member may challenge your Will call on 1300 654 590 or email us to discuss your concerns.

What if I leave them $1? 

You cannot avoid a challenge to your Will simply by naming someone in your Will and leaving them a token gift. An eligible person can challenge your Will if they are an excluded beneficiary or even if they are just not adequately provided for.  

If you are concerned that an eligible person might challenge your Will because you have not adequately provided for them, call us on 1300 654 590 or email us.

What if my spouse dies before me or we ended our relationship?  

If your stepchild is eligible to challenge your Will, they will still be eligible if their biological parent, i.e. your spouse has died before you. The relationship between stepchild and stepparent is established through the relationship between the natural parent and their married or de facto spouse.  As such, the relationship between a stepchild and stepparent does not survive the legal dissolution of the relationship between the stepparent and natural parent (i.e. divorce),4 but will endure if either the stepparent or natural parent dies before the relationship ends.5

We recommend that you call us on 1300 654 590 or email us if you are concerned that your former spouse’s child may challenge your Will.

What can I do to avoid them challenging my will? 

You never know who might challenge your Will when you die. By getting your estate planning in order, you can make sure your wealth is distributed in the way you intend. This can also help you avoid challenges to your Will.  

If you would like to create a Will or update your existing Will but are concerned about your stepchildren (or anyone else) challenging your decision, call us on 1300 654 590 or email us.

How can we help? 

We can assist you by re-structuring your personal assets and/or creating estate planning documents which ensure that your assets are distributed how you intend, to whom you intend.  

If you would like help getting your estate planning in order, call us on 1300 654 590 or email us.

 

The information contained in this post is current at the date of editing – 1 June 2023.

 

1 James v RostLangan v Rost [2022] VSC 98Haertsch v Whiteway [2020] NSWCA 133.

2 Plummer & Anor v Montgomery [2023] NSWSC.

3 Cooper v Atkin [2020] NSWSC 828.

4 Brown v Brown [2022] NSWSC 1393.

5 Bail v Scott-Mackenzie [2016] VSC 563.

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