Stepchildren Contesting a Will
Summary by Eric Butler. Law Society Accredited Specialist in Wills & Estates Law. I've worked the last 24 years doing nothing but family provision claims.
Free Call: 1800 960 156
Stepchildren are eligible to contest a will however the law is quit different in each State. Stepchildren cases can be very complex and you are advised to discuss any potential claim with your preferred lawyer.
Stepchildren are not specifically mentioned in the law as being eligible to claim. To be successful you must be a person (stepchild in your case) who was, at any particular time, wholly or partly dependent on your step-parent and you were at that time or any other time a member of the household which your step-parent was a member.
So, you must have lived in the same household as your step-parent and been dependant upon your step-parent. There is no rule about how long you need to have lived in the same household with your step-parent or how dependant you have been upon your step-parent.
You need to demonstrate that you have complied with both rules: 'Household' and 'Dependency' but they do not need to be at the same time. For example you may have lived in the same 'Household' for a period but not actually 'Dependent' at time and twenty years later you may have found yourself dependent upon your step-parent. In that case you would be eligible to claim. However the usual case would be that you were in fact dependent upon your step-parent at the time you were living with him or her.
There is no rule about how long in the 'Household" or how much 'Dependency' however the longer the 'Household' and the more 'Dependency' the stronger your claim for provision out of the estate. All of this also depends upon the strength of claims by other competitors or beneficiaries named in the will.
Step children are referred to many times in the law in this State. If you are under the age of 18 years or a student aged between 18 and 25 years or a stepchild with a disability you are eligible to claim family provision, in Victoria more commonly referred to as Testators Family Maintenance Claims.
Once you have demonstrated you eligibility you must prove to the court (or mediator) that at the time of his or her death your step-parent had a moral duty to provide for your proper maintenance and support and that the distribution of your step-parents estate failed to make proper provision for your proper maintenance and support.
The success of your claim will depend upon the available funds in the estate to be divided between other competitor and beneficiaries.
Stepchildren are specifically referred to as eligible applicants in Queensland law and in quiet a complicated way. Stepchildren in Queensland are defined as follows:
A person is a stepchild of a deceased person if the person is the child of a spouse of the deceased person and a relationship of stepchild and step-parent between the person and the deceased person did not stop under Section 2.
Section 2. The relationship of stepchild and step-parent stops on the divorce of the deceased person and the stepchild's parent or the termination of the civil partnership between the deceased person and the stepchild's parent or the ending of the de facto relationship between the deceased person in the stepchild's parent.
The Queensland Act of Parliament goes on to say this:
To remove any doubt, it is declared that the relationship of stepchild and step-parent does not stop merely because;
1. The stepchild's parent died before the deceased person, if the marriage, civil partnership or de facto relationship between the deceased person and the parent subsisted when the parent died or;
2. The deceased person remarried, entered into a civil partnership or formed a de factor relationship after the death of the stepchild's parent, if the marriage, civil partnership or de facto relationship between the deceased person and the parent subsisted when the parent died.
In other words, if you are a stepchild and your mother or father remained in a marriage or de facto marriage arrangement with your step-parent which only ended because of the death of you parent... you are eligible to claim provision out of the estate of your step-parent.
Exception to the Rule.
Adoptions. Children are eligible to make a family provision claim in each State so if by chance your step-parent adopted you then in that case you would not actually be a 'stepchild' but a 'child' within the law of each State and entitled to apply for provision out of the estate without the need to prove anything other than financial need for support.
As a child making a Family Provision Claim all you need to demonstrate to the court is your need for provision and that the deceased failed to make adequate provision for your proper maintenance and support.
The success of any claim will depend upon the extent of your financial need and that or your competitors.