Can a step-child contest their step-parent’s Will?
If you are a member of a blended family, you are not alone. According to the ABS , in 2021, Australia had 8.5% of couple families with children in step families and 3.5% in blended families. This article covers what can happen in the sad event that a step-parent passes away and stepchildren are inadequately provided for in the will — and indeed, whether stepchildren can contest the will and make claim on a deceased estate if they've been unfairly left out.
Who are the beneficiaries of a will-maker?
Living in the same household doesn't automatically make someone the beneficiary of an estate. The listed beneficiaries on a will are often family members, however, they can be any person or organisation nominated by the person making the will.
Most deceased estate disputes come from family members or a former spouse who feel that the deceased person did not leave adequate provision for them in the will.
Who is an eligible person to contest a step-parent's will?
You may be reassured to learn that under Section 40 of the Succession Act 1981 (QLD), "child" means, in relation to a deceased person, any child, stepchild or adopted child of that person which means that stepchildren are treated the same as biological children when it comes to making a claim on a deceased estate.
In order to be considered a stepchild the relationship between your parent and the deceased had to be in place on the death of the deceased and not ended by divorce, termination of a civil partnership or ending of a de facto relationship. You will be considered a stepchild if your parent died while their marriage to the deceased, civil partnership or de facto relationship subsisted when you parent died even if the deceased entered into a new relationship after the death of your parent.
The other basis on which you may have a claim is if you were under 18 at the date of death and you were being wholly or substantially maintained or supported (financially) the deceased person at the time of their death. However, although a stepchild of the deceased is eligible to make a claim from the estate, the nature of the relationship alone does not mean that a claim will be successful.
How long do I have to contest my step-parent's will?
Regardless of your relationship coming to terms with a person's death is a highly emotional experience. The grieving process may mean that time slips away, however it is important to understand that strict time limits apply if you plan on making a claim against the estate.
In Queensland, you must give notice of your intention to claim against an estate within six months of the date of death. To do this you need to give formal notice in writing to the executor or administrator of the estate. Even where you have given that notice, you are then required to start court proceedings within 9 months of the deceased’s date of death.
What is a family provision claim?
In circumstances where a person feels they have been disadvantaged or have been inadequately provided for in a will, they can make an application to the Supreme Court for a family provision claim. A family provision application is made available under the Succession Act 1981, however, the person claiming does need to be an eligible person, as outlined above.
A family provision order allows the person claiming to request proper provision from the estate where they feel they have not been adequately provided for.
What if my step-parent made their will under pressure from others?
Family provision claims are designed to achieve proper provision from an estate. Suppose you feel a will has been made under pressure or undue influence. In that case, a separate claim may be made. It is recommended that any such claimant seeks legal advice, as it's challenging to prove undue influence before the court.
Do I need to pay legal fees to apply for a family provision order?
Making a family provision claim can be highly complex and confusing during an emotional time. We recommend speaking with a lawyer in the first instance to determine the likelihood of being eligible to make a claim. Your lawyer will outline the expected legal costs, including the time they expect it will take to prepare a case and what additional costs there may be, e.g. if your claim goes before a court.
How Bradley & Bray lawyers can help
The process for contesting wills, especially as a stepchild or former partner, requires expert legal understanding. Formal requirements must be met, which can be challenging enough, let alone in this highly stressful period of your life.
At Bradley & Bray, we provide expert legal advice through all aspects of succession law. If you believe you're entitled to make a claim on an estate or wish to ensure your own will and estate planning sufficiently provides for your family members, please contact our friendly succession team today.
This article is general in nature and does not constitute legal advice. If you require legal advice in relation to your personal circumstances, you must formally engage our firm, or another firm to provide legal advice in relation to your matter. Bradley & Bray lawyers takes no responsibility for any use of the information provided in this article.
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