Can A Stepchild Contest A Will? (Vic)

Until recently, there was little regulation on who could contest a will in Victoria. In 2015, legislative reform effectively limited the list of eligible persons to close relatives and the deceased’s dependents. Under new provisions of the Administration and Probate Act 1958, a stepchild can contest a will in Victoria under certain conditions. This article outlines the eligibility criteria for a stepchild to contest a will in Victoria.

What Is A Testator’s Family Maintenance Claim?

Someone can contest a will in Victoria if they are an eligible person, who is entitled to fair provision from the testator, and who feels that they did not receive an appropriate share of the estate. Such a person contests a will through lodging a Testator’s Family Maintenance (TFM) Claim with the Probate Office of the Supreme Court of Victoria. The claim is evaluated against both statutory criteria and the claims of any other beneficiaries of the estate.

Who Is Eligible To Contest A Will?

Only certain people can make a TFM claim against a deceased estate. The list of eligible persons include:

• The spouse or registered partner of the deceased;
• A domestic partner of the deceased (pursuant to the Relationships Act 2008);
• A former spouse or partner who was prevented from engaging or finalising proceedings under the Family Law Act 1975 because of the death of the testator;
• Someone other than a spouse who was in a registered caring relationship with the deceased for a reason other than fee or reward;
• A child, stepchild or “assumed” child of the deceased under certain conditions;
• A member of the deceased’s household if they were also a dependent;
• An adult child who struggles to provide for themselves financially;
• A dependent.

Stepchildren and Succession Law

Given the rates of separation and divorce in Australia, blended families composed of children from previous relationships are increasingly common. In these families, the unrelated children are known as stepchildren. For succession purposes, a stepchild is the child of the testator’s current spouse, not related to them through biology or adoption. The definition of stepchild was further clarified recently to include the child of a domestic partner, and it was established that the death of the natural parent does not preclude the stepchild from being able to contest their stepparent’s will.

Case Study

This expansion of the definition of stepchild was established by a 2016 Victorian case, Bail v Scott-Mackenzie. In this case, the claimant’s mother had been in a domestic relationship with the testator for forty years before she passed away. The testator began a new relationship before his death, and he left his entire estate to his new partner. The court ruled that the claimant was eligible to make a TFM claim against the deceased estate because a stepchild includes the child of a domestic partner, and a stepchild can contest a will regardless of whether the natural parent predeceases the stepparent.

How Can A Stepchild Contest A Will?

A stepchild must meet certain conditions to qualify as an eligible applicant to contest a will. A stepchild can only contest a will in Victoria if they are:

1. A minor under the age of 18; or
2. A full-time student aged 25 or under; or
3. Suffering from a disability; or
4. An adult who is struggling to provide for his or her own financial needs.

Other Factors That The Court Will Consider

The first challenge for a stepchild is to prove their eligibility, but that does not guarantee that they will receive provision from the deceased estate. The court will assess the claim against other claims and consider a range of factors that relate to the claimant and the claimant’s relationship with the testator. For example, they will view the relationship in light of the age that the claimant became a stepchild of the deceased, and the level of dependence between the testator and their stepchild.

Time Limits To Contest A Will

A stepchild can only contest a will within the six months between the date of the probate grant and the limitation date. The Supreme Court can authorise an application outside the time limit if the claimant can justify the delay. A case for justification must demonstrate that the estate will not be prejudiced by an out of time application. However, the court is unlikely to hear an application if the executor has already distributed the estate according to the testator’s posthumous instructions. It is therefore essential that a stepchild intending to contest a will in Victoria contact a solicitor as soon as possible to commence proceedings.

The contested wills team at Armstrong Legal have extensive experience with filing Testator’s Family Maintenance Claims. If you are a stepchild who intends to contest the will of your stepparent, our solicitors can advise you on the best course of action and provide you with a realistic assessment of your prospects of success. For assistance with any probate, succession or testamentary matters, please contact our offices or call 1300 038 223 to arrange an appointment.