Can a step child challenge a Will? The answer to this question is not straightforward and depends on a number of issues.
More often we are seeing clients who have found themselves excluded from the Will of their biological parent and then later, excluded from the Will of their step parent.
Imagine this scenario…
- Mum Mavis and Dad Dave divorced. Sam is their only child.
- Mavis marries Stanley. Stanley has children from a prior marriage. Sam gets on well enough with Stanley and is pleased that Mavis is happy.
- Mavis and Stanley live happily together until Mavis dies.
- Sam understood from conversations with Mavis and Stanley that he and Stanley’s children will be provided for when the last of Mavis and Stanley dies. So Sam wasn’t concerned when Mavis left everything to Stanley when she died.
- Stanley died a few years later. To Sam’s dismay, he has been left out of Stanley’s Will. Instead, Stanley has given everything to the children from his first marriage.
Are you a step child in the eyes of the law?
We often see step children who have missed out from provision under their step parent’s Will. As a Willmaker, there are things that Mavis and Stanley could have put in place as part of their estate planning to ensure the provision for their children where they died first. For example, by using Mutual Wills which can be effective at safeguarding a Willmaker’s wishes.
In Queensland, the law recognises step children as eligible claimants for the purposes of challenging the step parent’s Will under what is called a Family Provision Application.
But the meaning of ‘stepchild’ is limited under the Succession Act 1981 (Qld) (“Act”) and even though some people might be considered step children, they could still find themselves unable to pursue this type of estate litigation.
To meet the requirements of the Act, it is important that the step parent and step childrens’ relationship only ceased because of the death of either the biological parent or the step parent and not for some other reason such as divorce. So in the scenario above, Mavis and Stanley were happily married – separated only by death. This means that the relationship of step child and step parent between Sam and Stanley continued to exist even after Mavis died.
If Mavis and Stanley had divorced, the divorce would have signalled not only the end of the step parent / step child relationship between Sam and Stanley but also, an end to Sam’s right to challenge Stanley’s Will – at least as a step child by way of Family Provision Application. There may be alternative options available, subject to the circumstances.
What can you do if you find yourself left out of a step parent’s Will?
If like Sam, you have been left out of a step parent’s Will, the estate disputes team at CRH Law led by Margaret Arthur, Accredited Specialist in Succession Law will be able to guide you expertly through the process of challenging a Will. Contact us for a free, no obligation consultation by calling 1800 274 529.