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Landmark Decision – Inclusion of Defacto Step Children as “Eligible Persons” in Estate Claims

A landmark decision was made on 10 May 2017 in the Supreme Court of Victoria regarding the rights of children brought into a defacto relationship to make a claim against the estate of their defacto step parent.

Our team at Armstrong Legal successfully defended the matter before the Supreme Court of Appeal, thereby setting a precedent in relation to expanding the class of persons who are eligible to bring a claim against an estate. The details are as follows:

  • Laurace Bail (“the Plaintiff”) brought a claim for further provision against the estate of her defacto step father, Siegfried Ruopp, deceased. The claim was brought pursuant to Part IV of the Administration and Probate Act 1958 (VIC) (“the Act”);
  • The Executor filed an application with the Court to strike out Laurace’s claim on the basis that she was not a “step-child” under the Act;
  • The Associate Judge hearing the strike out application, rejected the proposition put forward by the Executor, determining that “step-child” also includes children brought into a defacto relationship. The strike out application was dismissed.
  • The Executor appealed the decision of the Associate Judge, stating His Honour was wrong in law and fact for the following reasons:
    • Laurace had never been a stepchild of the Deceased as the Deceased and Laurace’s mother were never married, despite a defacto relationship of approximately 40 years;
    • Laurace was not a stepchild as defined by Section 90 of the Act; and>
    • Children of persons in a defacto relationship cannot be deemed to be “stepchildren” because the defacto partners were not married. This context applied to children brought into the defacto relationship, not born as a result of that relationship;

The Supreme Court of Appeal carefully considered the decision of the Associate Judge and the submissions made on behalf of the Estate and by Armstrong Legal on behalf of Laurace. The key question raised was whether the definition of “stepchild” was ever intended by the Victorian Parliament to include, or be expanded to include children brought into a defacto relationship defined by the Relationships Act. In short, the Supreme Court of Appeal upheld the decision of the Associate Justice, who supported the contention put forward by Armstrong Legal that the rights afforded to defacto spouses under the Act should also be afforded to children of defacto spouses. Part of the submissions filed by Armstrong Legal, which were adopted by the Associate Judge and later the Supreme Court of Appeal, referred to the accepted modern use of the term “stepchild”. The Supreme Court of Appeal found that the submission filed by Armstrong Legal in this regard was in keeping with the recent Parliamentary explanatory memoranda regarding recent changes to eligible person criteria under the Act.

The decision of the Supreme Court of Appeal expands the definition of “stepchild” under the Act, but still limits the class of eligible persons as intended by the changes introduced to the Act on 2015 by the Victorian Parliament.

Co-written by Serenay Kalkan

Image Credit – Robyn Mackenzie ©

Written by Paul Traianedes on May 10, 2017

Paul has significant legal experience in the area of Wills, Estates and Trust disputes, gained from working in boutique firms specialising in these areas of the law. Paul also ran such matters as part of an in-house legal team for a major trustee company. View Paul's profile

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