What’s the deal with step-children being excluded from wills? While this may seem like the start to a hilarious, well-timed joke, the truth is it can be anything but funny. At this point, it’s no secret that society is moving away from the traditional nuclear family. Divorce rates continue to rise, and family structures are becoming more complex. It’s just a fact of life.
However, this change in family structure is creating some interesting legal challenges when it comes to estate planning, as blended families lead to all sorts of complications in the contested estates arena.
Whether you are a step-child considering contesting a will or a step-parent concerned with protecting your testamentary wishes, it’s important that you are aware of your rights and obligations under the law.
A step-parent can be defined as:
someone who is not a legal parent of the child; but
is married to or in a de facto relationship with a legal parent of the child; and
treats that child as a member of the family created with the legal parent.
The child in question is deemed to be a step-child of the step-parent. This step-parent/step-child relationship can exist even if the legal parent and step-parent are no longer together.
So… Can a step-child contest a will in Australia?
The short answer is yes, they can. However, the long answer is slightly more complex. Specific requirements and processes associated with contesting an estate vary from state to state. In NSW, eligible persons who have been left out of a will or received less than they believe they are entitled to, can make what is called a Family Provision Claim.
An eligible person can be defined as:
Current spouse or de facto partner of the deceased;
legal child of the deceased; and
former spouse of the deceased.
While step-children are not explicitly considered, there is a further category of eligible persons, being a person who was dependent on the deceased and lived with the deceased person as a member of the same household at a point in time. If a step-child can prove that they meet these two criteria, they must then demonstrate to the court that there are factors warranting the making of the application.
The court will consider the unique factors and circumstances of the case, such as:
The history and closeness of the relationship
The age of the step-child when they became a member of the family, and
The extent of dependency.
Once factors warranting are established, the Court must then be satisfied that adequate provision for the proper maintenance or advancement in life of the applicant has not been made by the deceased. Again, the court will consider all relevant factors of the case, including but not limited to:
The size of the estate,
The needs of the applicant, and
The competing needs of beneficiaries under the will or other eligible persons.
In NSW, an application for family provision claims must be brought within 12 months of the death of the testator. This time limit remains the same, regardless of the category of eligible person that the applicant falls under.
Now, as with many legal matters, there may be things that lead to an application being made out of time – maybe probate has not yet been applied for, or the person wanting to make the claim was not made aware of the contents of the will until the expiry of the time limit.
While an out of time application can be made in limited circumstances, the circumstances are just that – limited. Applicants should endeavor to act as quickly as possible and seek independent legal advice to avoid unnecessary delays and complications with the process.
Doshen v Pedisich
So you have heard me talk about the legal logistics of step-children being excluded from wills, but let’s quickly look at a real life case.
Doshen v Pedisich was a 2013 case that concerned an adult stepdaughter who had been written out of her late stepmother’s will. The net value of the distributable estate was just shy of $750,000.00
The court found that as a teenager, the applicant had lived with the deceased and her late father as a member of their household for over a year and during this time was wholly dependent upon them. As such, it was established that the applicant was an eligible person under s57(1)(e) of the Act.
The court was satisfied that there were factors warranting the making of the application and that adequate provision had not been made for the applicant’s proper maintenance or advancement in life. The Court ordered that the applicant stepdaughter receive a lump sum of $75,000.00 from the deceased estate.
As you can see, excluded step-children can and do make successful claims on the estate of their deceased step-parents.
If you are unsure about your legal rights as a step-child or step-parent, or whether you can contest a will in Australia, it is important to speak to a lawyer. As I have explained, the grounds for contesting a will can be complex and vary between states and territories.
Our Contested Wills and Estates Team are experienced in dealing with these matters and can provide you with advice specific to your circumstances. Contact us today for an obligation free chat about your options.