how to contest a will if you're a stepchild left out of your stepparent's will

Can a Stepchild Contest a Will in Australia?

Over the years, blended families have become common in Australia. Some marriages end in divorces or separations, while other couples enter de facto relationships. In turn, families have become more complicated structures that often include biological offsprings, adopted kids and stepchildren. All of these have a legal impact when a parent passes away. That’s especially true if they leave a Will that doesn’t provide adequate provisions for all the children. For instance, can a stepchild contest a Will in Australia? What are the legal steps they should make?

Let’s talk about the legal definition of a stepchild first.

The Family Law Act of 1975 defines a stepchild this way—a child whose biological parent marries or enters a de facto relationship with an individual who is not the child’s other natural parent. The legal relationship between the stepchild and stepparent persists if the natural parent or stepparent dies before their marriage or de facto relationship ends. 

Does a Will automatically cover a stepchild?

The quick answer is no. When it comes to wills & inheritances, a stepchild in many Australian states doesn’t have the same legal rights as biological children. Still, it can be a grey area as a stepchild either has an explicit or conditional right to contest their stepparent’s Will. That is if they’ve been left without adequate provision from their stepparent’s estate or completely removed from the Will. But the process of contesting a Will as a stepchild depends on the location of the deceased’s estate. 

In some jurisdictions, a stepchild can have an absolute right to contest a stepparent’s Will. But in other states, they must meet additional eligibility criteria. For instance, they may have to prove they depended financially on their stepparent and/or the other household members when the testator was still alive. 

How to contest a stepparent’s Will in Australia

A stepchild who feels their stepparent or related party treated them unfairly in the Will can contest it. The key step is to file a claim to the jurisdiction’s Supreme Court. Once it has been approved, the court can order an estate redistribution to create an appropriate provision for the stepchild. 

That may sound simple. But remember that before your claim gets approved, you may need to meet additional eligibility requirements set by the estate’s jurisdiction. 

Can a stepchild contest a Will in Victoria?

In Victoria, the applicable succession law is the Administration and Probate Act of 1958. This legislation states that a stepchild can only contest their stepparent’s Will if they meet one of these eligibility requirements:

  • If the stepchild is under the age of 18
  • If the stepchild is a student under the age of 25
  • If the stepchild is a person with a disability

How about if you’re an adult stepchild who financially depended on your stepparent when they were still alive? Since you don’t fit any of the requirements above, you may have to demonstrate financial difficulty to contest the Will. 

Reach Out to a Will and Estate Lawyer in Melbourne

Under the common law in Australia, the wishes should be respected if a deceased individual had full capacity and wasn’t coerced when they crafted their Will. But then again, estate distribution isn’t always black-and-white when blended families or stepchildren are involved. 

If you’re a stepchild, you may have legal rights to file a claim on your stepparent’s estate. You must, however, first establish your eligibility. It’s not enough that you had a great relationship with your stepdad or mom or that you’d always helped run their farm and maintain the farm sheds before they passed away. And since each family is different, your case’s eligibility will depend on your circumstances within your family structure. It’s best to seek help from experienced Wills and Estate lawyers to navigate the complexity of your claim. 

Contact our exceptional Wills and Estate lawyers if your stepparent’s estate is in Melbourne or any part of Victoria. Our attorneys have years of experience handling complex probate law cases throughout the state. We’re ready to assist your claim.

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