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Can A Stepchild Contest A Will? (ACT)

In the Australian Capital Territory, a biological or adopted child has an explicit right to dispute their parent’s will. Both adult and minor children have an inalienable right to seek part of their parent’s deceased estate. By contrast, under the Family Provision Act 1969, a person can only contest the will of their stepparent if they were financially dependent on them for substantial maintenance. This is because the law presumes that biological and adoptive parents have a moral responsibility to provide for the maintenance of their children, but a stepparent does not automatically have the same moral responsibility. This article outlines the limited allowance for a stepchild to contest a will in the ACT.

Definition Of A Stepchild In Estate Law

A stepchild is not a biological child of the stepparent, and not legally adopted. Rather, a stepchild is someone whose biological parent is married to (or in a de facto relationship with) someone who treats the stepchild as a member of the family. Under the Family Law Act 1975, a stepchild is a “relative” of the stepparent, but a stepparent does not have legal parental responsibility for the child.

What Does It Mean To Contest A Will?

When someone dies, they usually leave a will that deals with the liabilities and assets of the deceased estate (if they do not leave a will their estate is described as intestate). A testator can draft their will as they see fit because they have a statutory right to testamentary freedom. This means that they can leave their assets to family members, friends or charitable institutions in any type of distribution. However, there is also statutory provision to allow eligible people to dispute the distribution of the estate.

Someone contests the will of an ACT resident or a person who owns property in the state through a Family Provision Claim to the Supreme Court. This application asks the court to amend the distribution of the estate so that the claimant receives a bequest or a greater share of the deceased estate.

A limited list of people is eligible to contest a will in the ACT. The list includes:

  • The partner (spouse, civil or de facto domestic partner) of the deceased;
  • Someone who at any point in the past was in a domestic relationship with the deceased for at least two continuous years;
  • The deceased’s child;
  • A grandchild that the deceased was financially supporting immediately before their death, or if the parent of the grandchild predeceases the grandparent, or if one of the claimant’s parents was not financially supporting their child;
  • A parent of the deceased if they were financially maintained by the deceased, or the testator died without children or a spouse; and
  • A stepchild that the deceased was financially supporting immediately before their death.

In the Australian Capital Territory, a stepchild is not included in the category of “child”, unless the stepparent adopted the child at some point. However, there is a separate category that defines a stepchild as conditionally eligible to contest a will. Under the Family Provision Act 1969, a stepchild is entitled to make a Family Provision Claim if their stepparent was providing financial maintenance to them before their death.

Proving Eligibility of stepchild to contest a will

If a stepchild is seeking to contest a will, they must provide evidence that their stepparent was maintaining them before their death. This maintenance must have been a regular and substantial form of financial support, not an occasional gift or sporadic assistance. For instance, if the stepchild lived rent-free in the home of the testator and would not have been able to pay for their own living expenses without this assistance, then they were receiving maintenance from the deceased.

It should be noted that just because a stepchild may be eligible does not mean that they will ultimately succeed in a claim. The court will assess the claim against a range of criteria, with first consideration given to whether the claimant already received adequate provision from the testator in the will. There is a list of further criteria, including:

  • The history of the relationship between the stepchild and their stepparent;
  • The financial status of the stepchild;
  • Any factors that would affect the stepchild’s ability to support themselves in the future;
  • The size of the estate; and
  • Whether the stepchild contributed financially or in some other way to the value of the estate or their stepparent’s family.

Time Limits To Contest A Will In The ACT

An eligible stepchild can only contest a will within the statutory time limits. In the ACT, a claim must be made in the six months following the grant of probate. The Supreme Court may, in limited circumstances, make an exception and grant an application out of time.

Our contested wills team is here to help if you need assistance in assessing your eligibility or chances of success when contesting a will in the ACT. As there are deadlines on Family Provision Claims, you should seek legal advice as soon as possible so that you have enough time to consider your options and gather relevant information. Please call Armstrong Legal on 1300 038 223 to discuss your legal needs, or make an appointment without delay. Bottom of Form

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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