Can stepchildren challenge a will?

Over the years, the parties who can challenge your will have been greatly expanded, and now include de facto partners, former spouses and some dependants, including grandchildren. However, despite the huge growth in blended families, there are still no automatic rights of stepchildren who are unfairly left out of wills.

FAMILY PROVISION LEGISLATION

Married couples usually have wills leaving everything to each other or, if the other has already died, leaving everything to the children, either directly or through trusts. If they leave a spouse or child out of the will, this can be challenged under the Family Provision legislation, and a Court can award a share of the estate to the neglected spouse or child. However, this generally does not apply to stepchildren, unless the stepchild lived with the step-parent and can show that they were partially or totally dependent on them.

A SAD CASE

We were consulted by a client whose parents separated many years ago. His father soon re-married and had another son. Our client had left home, but was always treated as a member of the family, along with his half brother. The boys call themselves brothers, and there was never any distinction between them in the family. Over the years, the father became wealthy and, when he died, he left everything to his second wife. Our client considered it was quite natural that his father should leave everything to her, and expected that, when the time came, he and his “brother” would eventually inherit the estate. So, he saw no need to obtain legal advice at that time.

When the widow died, our client was shocked that she left everything to the half-brother, and nothing but a few mementos to our client.

When he sought our advice, we had to tell him that his relationship with his stepmother did not give him any rights in respect of her will. It was now far too late to seek anything under his father’s will. The legislation requires that a claim must be commenced within 12 months of the date of death. The court has the power to extend that period, but extensions are granted only in exceptional circumstances, and extremely unlikely where the reason was dissatisfaction with the will of the stepmother.

THE SOLUTION

A change in the legislation could solve the problem by allowing a person to seek a share of their stepparent’s will. However, there is no move to change the law.

If our client had challenged the father’s will within 12 months of his death, he probably would have been successful. However, he would have been reluctant to do so. The best solution would have been to negotiate an arrangement with his stepmother where she made a legally binding agreement to make a will including reasonable provision for him.

An even better solution would have been for the stepmother to make a will which made reasonable provision for our client, without being prompted to do so.

In many cases where there are blended families, the ‘parents’ may make their wills irrevocable, such that there can be certainty that on the death of one, the other will not change their will to favour their own children. As part of our estate planning process, we often advise clients in relation to irrevocable wills.

For more information please contact Stephen Lynch (02) 9923 2321 slynch@somervillelegal.com.au.