Can A Stepchild Contest A Will in Australia?
A stepchild either has an explicit or conditional right to contest the will of their stepparent, depending on the location of the deceased estate. A stepchild has an absolute right to contest their stepparent’s will in several Australian jurisdictions, while in others they must meet additional eligibility criteria. In these states and territories, stepchildren must prove that they were dependent on the testator and/or members of the same household. This article explains the legislative provisions for a stepchild to contest a will in each state and territory of Australia.
Legal Definition Of A Stepchild
The Family Law Act 1975 defines a stepchild as a child who is not biologically related to the stepparent. Instead, the legal connection between the stepchild and stepparent is established through the relationship between the natural parent and their married or de facto spouse. As such, the stepfamily relationship does not survive the legal dissolution of the relationship between the stepparent and natural parent. The legal relationship between the stepchild and stepparent does endure if either the stepparent or natural parent dies before the relationship ends.
The status of the parents’ relationship is irrelevant if the stepparent adopted the stepchild at any time, as an adopted child is considered a legal child of the deceased for the purposes of contesting the will.
Contesting A Stepparent’s Will In Australia
A stepchild who feels that their stepparent treated them unfairly in their will can contest the will through an application to the jurisdiction’s Supreme Court. If the application is successful, the court can order a redistribution of the deceased estate to make an appropriate provision for the claimant. The following jurisdictions have legislative provision for a stepchild to contest a will in Australia:
Can A Stepchild Contest A Will in Victoria?
The applicable succession law in Victoria is the Administration and Probate Act 1958. Under this legislation, a stepchild can only contest a will 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 must demonstrate financial difficulty in order to contest their stepparent’s will.
A stepchild has the same rights in the Succession Act 1981 as a biological or adopted child of the deceased. There are no qualifications to this eligibility, so the claimant does not have to be a minor or student or prove dependence on the deceased.
Can A Stepchild Contest A Will in Tasmania?
In Tasmania, the Testator’s Family Maintenance Act 1912 makes allowance for a stepchild, regardless of age, to contest the will of their stepparent. For the purposes of this legislation, a stepchild is eligible whether their parents are married or in a de facto or same-sex relationship.
Can A Stepchild Contest A Will in New South Wales?
In New South Wales, a stepchild is not explicitly listed in the Succession Act 2006 as an eligible person. In order for the stepchild to meet the eligibility requirements, they must prove two elements: that they lived in the same household as the testator at some point in the past and that they were at one time a dependent of the deceased.
Australian Capital Territory and Northern Territory
In the Australian Capital Territory, a stepchild is listed as a conditionally eligible claimant in the Family Provision Act 1969, with a similar provision for a stepchild in the Northern Territory under the Family Provision Act 1970. In both of these jurisdictions, a stepchild is only able to contest their stepparent’s will if the testator was maintaining the stepchild immediately prior to his or her death.
In South Australia, the Inheritance (Family Provision) Act 1972 only allows the child of a spouse or domestic partner to contest a will if the stepchild was already in receipt of or legally entitled to some form of maintenance from the testator just before their death.
In Western Australia, the stepchild is a conditionally eligible claimant under the Family Provision Act 1972. A stepchild can contest a will if they were already receiving or entitled to maintenance from the testator. 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.
The highly experienced contested wills team at Armstrong Legal can help you assess your rights as a stepchild to contest the will of your stepparent. The team can advise you on the law in your jurisdiction and your chances of success under relevant estate and probate law. For legal assistance on this or any other matter, please phone our offices on 1300 038 223 or make contact to arrange an appointment without delay.