I often receive enquiries from people who are interested in contesting their step-parent’s Will. Usually I receive these calls from people whose natural parent has passed away, leaving their estate to their step-parent. If the step-parent then passes away and does not make provision in their Will for the client, the client often feels that they have been left of their parent’s estate.
Can a step-child contest their step-parent’s Will?
Succession law is not uniform throughout Australia. Where a person resides and passes away dictates who can contest their Will for provision if they are not provided for.
In Queensland a step-child is treated the same as a child for the purposes of contesting Wills. In New South Wales, however, the step-child is not automatically eligible and needs to prove that they shared a residence with their step-parent and were dependent on them. This is not always easy to prove if the step-child is an adult and the marriage between their parent and step-parent occurred late in their parent’s life.
Victoria has recently announced new legislation limiting adult children’s right to claim.
Do I cease to be my step-parent’s step-child on the death of my parent?
In Josep Bernhard Neis (deceased) [2014] SASC 93, the Court found that if the deceased had children from a previous relationship and the deceased and their spouse are still married at the time of death, the deceased’s children will remain their step-parent’s children.
In Queensland, if your parent and step-parent were still married at the time of the death of your parent, then you will always be your step-parent’s step-child. This relationship does not cease on the death of your parent. If, however, your parent divorces your step-parent and then subsequently passes away, you will no longer be your step-parent’s step-child and will not be eligible to contest their Will in this capacity.
How do I provide certainty in my Will so that I can exclude my step-children?
In the case of Warren v Leo [2014] NSWSC 494, it was held that a gift to the testator’s children meant her natural children, and not her step-children. However, it should be noted that in New South Wales, children and step-children are not treated the same way, so it would be especially necessary not to assume that “children” in a Will included step-children.
I always strongly recommend that my clients specifically name their beneficiaries in their Wills, including their first, middle and last names as shown on their birth certificates or driver’s licences. Including nicknames in Wills can be problematic if it creates uncertainty as to who exactly the beneficiary is. This will also make distribution of your estate easier when you pass away.
I want to contest my step-parent’s Will – what should I do?
If you would like to contest your step-parent’s Will, I strongly recommend you seek the advice of an experienced estate litigation lawyer. Please do not hesitate to contact me should you require advice or assistance.
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