Can I make a claim on an Estate even if I am a stepchild?

By 2 August 2017Wills & Estates

Eligibility to bring a claim for further provision from an Estate in both NSW and Victoria depends on whether you fall within the definition of “eligible person” contained in the relevant legislation.

In Victoria, stepchildren are eligible although “stepchild” is not defined.

Traditionally the definition of stepchild depended on a marriage between the natural parent and the stepparent. So you are definitely able to make a claim if your natural parent and the deceased were still married at the date of death.

But are you still a step child if your natural parent and the deceased did not marry but lived in a domestic relationship?

This question was recently considered by the Victorian Court of Appeal in Scott-Mackenzie v Bail [2017] VSCA108. In this case, the deceased had never married and had no children of his own. He was in a domestic relationship with the claimant’s mother for over 40 years. The claimant had grown up in their household. The claimant’s mother died and sometime later the deceased entered into a new domestic relationship. The new domestic partner was the sole beneficiary of the estate and tried to have the claim dismissed on the grounds that as the claimant’s mother had never been married to the deceased and, therefore, the claimant was never a stepchild. This argument was rejected by the Court. The conclusion of the Court was that “stepchild” encompasses the child of the deceased former domestic partner.

But what about the situation where your own parent has died or had separated from the deceased? Are you still a stepchild?

Courts in both Tasmania and Queensland have considered the situation where the death of the natural parent occurs before the death of the stepparent and have decided that in this case the child ceases to be a stepchild.

In Scott- Mackenzie v Bail it was the death of the natural parent that ended the domestic relationship and so the Court’s decision, in that case, confirms that the death of the natural parent does not end the stepchild/stepparent relationship for the purposes of the Victorian legislation.

If, however, the natural parent and the stepparent have divorced, or, in the case of domestic partners, separated does the stepchild/stepparent relationship come to an end?

At common law, the answer is yes. This is because the basis of the relationship is dependent on the relationship between the natural parent and the stepparent. So if that relationship ended by divorce or, in the case of a domestic relationship, separation, the relationship of stepchild also ends.

This specific question has not yet been addressed by the Victorian Courts in the context of an Estate challenge. If the Victorian Courts determined that the common law rule applied a former stepchild might be able to rely on other classifications of eligibility. For example, a stepchild may have for a substantial period during the life of the deceased believed they were the deceased’s natural child or they might still be living in the household of the deceased.

In NSW, the eligibility criteria are a little different and a stepchild would qualify as a person who was at any particular time wholly or partly dependant on the deceased and was at any particular time a member of the household of which the deceased was a member. Although this might seem a clumsy description at least it does away with the problem of whether the natural parent was married to the deceased or was still in a relationship with the deceased at the time of death. Under the NSW definition a stepchild would not lose eligibility either way.

Given that family dynamics may alter a number of times throughout the life of a child the potential for someone to have a succession of stepparents is not unrealistic.