Can my step-child contest my Will?

The first hurdle to clear if someone wants to contest a Will is whether they are an ‘eligible person’ under the relevant legislation. A ‘step-child’ is specifically included in the list of such eligible persons in the law.

Seems straightforward? Think again. A recent case in the Supreme Court of Victoria (Bail v Scott-Mackenzie [2016] VSC 562) tackled the below thorny hypotheticals:

Hypothetical #1: what if you weren’t married to your partner? Does their child still count as your ‘step child’?

On the basis of the wording of the rest of the legislation, and the fact that it was drafted to reflect modern attitudes about relationships, the Court decided that a child is still considered a step-child even if the parent and their partner are in a de facto relationship, but not married.

Hypothetical #2: what if your partner, the biological parent of your step-child, died before you? Can your step-child still claim against your estate in this scenario?

On this question, the Court decided that a step-child can contest their step-parent’s Will if, at the time their natural parent died, they were in a still married or in a de facto relationship. In the recent case, this was decided even though the natural parent had died 15 years before the step-parent. If the married couple had divorced prior to the death of the natural parent, the step-child relationship would have ended.

It must be said that simply satisfying the ‘eligible person’ test isn’t a get out of jail free card for someone seeking to contest a Will. A claimant must also demonstrate, amongst other things, that the deceased had a moral duty to provide for them, and that they are in financial need.

So what?

The above case highlights a number of important factors in relation to estate planning for blended families:

  1. Ending a marriage or de facto relationship

If a married couple’s marriage has broken down irretrievably, as opposed to where the couple has separated with some hope of reconciliation, steps should be taken to obtain a divorce prior to death. Many couples simply don’t get around to it, notwithstanding that they may have finalised property matters between them through consent orders or a binding financial agreement.

While failing to divorce might sound harmless, as set out above it could make it easier for a step-child to contest a step-parent’s Will, and of course it also makes it easier for the spouse to contest the Will. Further, where the deceased failed to make a Will, the surviving spouse may be automatically entitled to a share of the estate, and even if they disclaim their interest, this usually has adverse tax consequences for the estate.

The situation is more complicated for those in unregistered de facto relationships. There are steps you can take, however, to more formally finalise your relationship.

  1. Thorough estate planning

It is crucial that partners in blended families carefully turn their mind to their estate planning. There are a number of mechanisms which can be used in Wills to assist in the wishes of the couple/step-parent being met, such Will contracts, or including reasons in the Will for leaving someone out.

Nevile & Co can assist you with all aspects of family law, including divorce or finalising a de facto relationship. We can also guide you, or you and your partner, through the estate planning process, ensuring that your unique familial circumstances and wishes are best accounted for in your Wills.

For more information about our family law services, contact David Dudderidge: david.dudderidge@nevile.com.au;

and for estate planning, contact Sarah Slattery: sarah.slattery@nevile.com.au.