A stepchild is a person who is not the biological child of their parent’s spouse but is legally considered a child of that parent due to their marriage or de facto relationship. In Victoria, stepchildren do not automatically have the same legal rights as biological children when it comes to inheritance from their stepparent. If a stepparent decides to leave their estate to someone other than their stepchild in their Will, the stepchild may choose to contest the Will.
The process of contesting a Will in Victoria is governed by the Administration and Probate Act 1958 (Vic). This act sets out the rules for challenging the validity of a Will, including the grounds on which a Will may be contested and the procedure for doing so.
The legal rights of stepchildren in relation to a stepparent’s Will
The Administration and Probate Act 1958 and The Wills Act (1997) (Vic) are the main legislation that deals with the rights of stepchildren in relation to a stepparent’s Will. Under these acts, stepchildren may be entitled to seek “maintenance” from their stepparent’s estate if they can prove that they were being maintained by the stepparent at the time of their death. Maintenance includes financial support for basic needs such as food, clothing, and housing.
In the case of Re James v Day (2004) VSC 209, the step-children of the deceased successfully claimed maintenance from their step-father’s estate. The court found that the step-children had been financially dependent on their stepfather and that he had a moral obligation to provide for them.
It is important to note that the entitlement to maintenance as a stepchild is not automatic and will depend on the specific circumstances of each case. It is advisable to seek legal advice if you are a stepchild considering making a claim for maintenance from your stepparent’s estate.
The grounds for contesting a Will as a stepchild in Victoria
There are several grounds on which a stepchild may be able to contest a Will in Victoria. These include:
- Lack of testamentary capacity: This means that the person making the Will (the testator) did not have the mental capacity to understand the nature and effect of their Will at the time it was made. To be considered valid, a Will must be made by a person who is over the age of 18 and has the mental capacity to understand what they are doing.
- Undue influence: This refers to situations where the testator has been pressured or coerced into making a Will that does not reflect their true wishes. For example, if a stepparent is unduly influenced by a new spouse to disinherit their stepchild, the stepchild may be able to contest the Will on the grounds of undue influence.
- Fraud or forgery: If a Will has been forged or altered in any way, it may be challenged on the grounds of fraud.
- Lack of proper execution: A Will must be properly executed in accordance with the requirements of the Wills Act (1997) (Vic). If a Will has not been properly signed or witnessed, it may be deemed invalid.
It is important to note that contesting a Will is a complex legal process and requires strong evidence to support the claim. It is advisable to seek legal advice if you are considering challenging a Will on any of these grounds.
The process of contesting a Will in Australia as a stepchild
If a stepchild wishes to contest a Will in Australia, they will need to file a claim with the Supreme Court in the state or territory where the deceased lived. The claim must be made within six months of the date of the grant of probate (the court order that confirms the validity of the Will).
To support their claim, the stepchild will need to gather evidence such as witness statements, medical records, and financial records. It is important to have a clear understanding of the grounds on which the Will is being contested and to have strong evidence to support the claim.
It is advisable to seek representation by a lawyer when contesting a Will. A lawyer will be able to provide expert guidance on the legal process and help to ensure that the claim is properly prepared and presented to the court.
Factors to consider before deciding to contest a Will as a stepchild
Contesting a Will can be a complex and emotionally challenging process. There are several factors that a stepchild should consider before deciding to take legal action:
- The potential emotional toll: Contesting a Will can be an emotionally draining experience, especially if the stepchild was close to the deceased. It is important to be prepared for the possibility of a lengthy and emotionally difficult legal process.
- The likelihood of success: It is important to have a realistic assessment of the chances of success before embarking on a legal challenge. A stepchild will need to have strong evidence to support their claim and a clear understanding of the legal grounds for contesting the Will.
- The potential financial cost: Contesting a Will can be a costly process, especially if legal representation is required. It is important to carefully consider the potential financial implications before deciding to take legal action.
Alternatives to contesting a Will as a stepchild
If a stepchild is considering contesting a Will, they may wish to consider alternative options such as:
- Seeking a financial settlement outside of court: In some cases, it may be possible to reach a financial settlement with the other beneficiaries of the estate without going through the legal process of contesting the Will. This can be a quicker and less expensive option, but it is important to seek legal advice before agreeing to any settlement.
- Mediation or arbitration: Mediation is a form of alternative dispute resolution in which a neutral third party helps the parties to reach an agreement. Arbitration is a similar process, but the decision of the arbitrator is binding on the parties. Both mediation and arbitration can be faster and less expensive than going to court, but they may not be suitable in all cases.
It is important to carefully consider all the options before deciding how to proceed. It is advisable to seek legal advice to determine the best course of action.
Conclusion
In summary, stepchildren in Australia do not automatically have the same legal rights as biological children when it comes to inheritance from their stepparent. However, they may be entitled to seek “maintenance” from their stepparent’s estate if they can prove that they were being maintained by the stepparent at the time of their death. If a stepchild wishes to contest a Will, they will need to file a claim with the Supreme Court and have strong evidence to support their claim. The grounds on which a Will may be contested include lack of testamentary capacity, undue influence, fraud or forgery, and lack of proper execution.
Before deciding to contest a Will, stepchildren should consider the potential emotional toll, the likelihood of success, and the potential financial cost. Alternative options, such as seeking a financial settlement or using alternative dispute resolution methods, may be quicker and less expensive than going to court. It is important to seek legal advice before deciding on how to proceed.
References
- Administration and Probate Act 1958 (Vic)
- Wills Act (1997) (Vic)
- Family Law Act 1975 (Cth)
- James v Day [2004] VSC 290; BC200405594