Does My Stepchild Have A Right To Claim On My Estate?

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Does My Stepchild Have A Right To Claim On My Estate?

Written by: Karlene Wightman l Legal Team


When making, altering or updating a Will, many people ask the question:

“Do I need to provide for my stepchild or stepchildren?”

While the answer is ‘Yes’, there are many factors involved in whether a stepchild is entitled to share in their stepparent’s estate.  But to delve into that, we must first understand Part IV Claims.

What Is A Part IV Claim?

A Part IV Claim is an application to the Court whereby the individual requests a share or a larger share in the deceased’s Estate in circumstances where the deceased had a normal obligation to provide for them but failed to do so.

Eligibility For Stepchildren

Part IV of the Administration and Probate Act 1958 (Vic) states who is eligible to make a Part IV Claim, with stepchildren being one of those eligible persons.

Claims by stepchildren are generally made when their natural parent has already died and are often made on the basis that their stepparent inherited all of their natural parents’ wealth and therefore now have a duty to provide for them.  This is particularly the case when assets are held jointly and therefore automatically pass to the surviving spouse.

Historically the Courts considered stepchildren to have a much lessor claim than the deceased natural parents, especially in circumstances where the relationship between the stepchild and stepparent ceased to exist after the natural parents’ death.  However, the Courts have shifted in their thinking, and it is no longer the case that a natural child take precedence over their step-siblings.  It is all too often a regular occurrence that a surviving spouse alters their Will once their partner dies, for a whole myriad of reasons.  Most commonly, this comes from pressure from their biological children to significantly reduce or eliminate the stepchild’s share.

With this being said, on January 1st 2015, the Courts tightened the category of persons who can make a claim against a deceased persons Estate, effectively making it more difficult for both adult children and adult stepchildren to prove entitlement.

For adult children or stepchildren, who do not suffer from a disability, consideration must be given to the degree to which these children or stepchildren are capable of providing for their own maintenance and support.  In a nutshell, the more successful you have been in life, the less likely you are to have a successful claim.

Want to know more about what is involved in Deceased Estate Administration?  Check out this recent blog we put together: What Is Deceased Estate Administration? 

Relevant Factors for Challenging An Estate

When a Part IV Claim is heard, the Court’s obligation to the deceased is to first and foremost try to uphold the Will.

However, this obligation does need to be weighed against the deceased moral obligation to a step-child to make provisions for them upon death. The Court must have regard to the following factors:

  1. The Deceased’s Will and their current wishes.  As mentioned above the Court tries to preserve the Will as much as possible;
  2. Evidence provided in relation to why the deceased made little or no provision for the stepchild, and;
  3. Any other evidence regarding the deceased’s intentions with respect to the stepchild.  Previous Wills which provide for the stepchild would be particularly relevant to a claim.

Want to know more about what happens if you’re considering challenging a Will?  Check out this recent blog we put together: How Do I Challenge A Will?

Factors For Court To Consider When Determining Success Of A Claim

Section 91A of the Administration and Probate Act 1958 (Vic) sets out that a Court must have regard to when determining the outcome of a claim.

Some of these factors for the Court to consider include:

  • (a) The relationship between the deceased and their stepchild;
  • (b) The size and nature of the Estate;
  • (c) The financial resources of the stepchild versus that of the beneficiaries of the Estate; and
  • (d) Any other matter the Court considers relevant.

Unfortunately, as stated previously, it is often the case that the more successful you are in life, the less likelihood of success.

Procedure For Considering A Will

When a person passes away it is a very overwhelming process, and this is without the dynamic of a blended family.

While it is often the case that individuals do not want to discuss money so soon after a persons death, there are time constraints in relation to making a Part IV Claim.

The first step in the process is to ask to see a copy of the Will.  Stepchildren have a legal right to see not only the most current Will, but also any previous Wills made by the testator.  If you are uncomfortable requesting this yourself, your lawyer can do this on your behalf.

It is important to obtain this information as soon as possible, as any person wanting to make a claim against an Estate has six months from the date of the Grant of Probate to do so.  Therefore, obtaining legal advice at your earliest opportunity will allow your lawyer to ensure that all deadlines are met.  It will also allow them to try to negotiate a settlement before the Court process, if both parties are agreeable, which would save time and money.

Want to know more about the process of Grant of Probate?  Check out this blog we put together: What Is Probate?

Responsibility For Legal Costs

A concern that many claimants have is that they will not be able to afford the legal costs associated with a claim.

A successful claimant will usually be entitled to have their legal costs paid by the Estate and this is commonly part of the negotiation if the claim settles at mediation.  However, if the Court considers the claim to be frivolous, vexatious or without merit, it would be unlikely legal costs would be paid from the Estate.  Furthermore, the claimant may be ordered to pay the Estate’s legal fees.  It is therefore essential that you obtain specialist legal advice before commencing any proceedings.

What Happens If The Deceased Did Not Have A Will?

If the deceased did not have a Will, they would die intestate.

The consequences of this are that the legislation determines the distribution of the Will. It is possible to make a claim in these circumstances, and the same factors would apply when the Court makes their decision.

Want to know more about what happens if you die without a Will?  Check out this blog we put together: The Importance of Creating A Will.

Canny Legal – Expert Wills + Estate Advice

Step-children often wonder what their rights are if their natural parent predeceases their step parent.

It is important for individuals to understand their rights obligations in relation to blended families.  Canny Legal’s lawyers are expertly trained and experienced to deliver not only the best possible leadership through tough legal troubles, but to also provide a comforting voice of understanding and empathy to ensure you feel as comfortable as possible during such a tough time in your life.

Get in touch with our team to find out where you stand when it comes to the claims on your parents/stepparents’ Wills, or to have us help in writing your own Will!

Principal Lawyer Karlene Wightman standing centre in the picture with one hand on her hip wearing a light pink coloured sleeveless dress with a white and red coloured flower print

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