By Troy Palmer, Special Counsel, Scott Colvin, Law Graduate

Last week, the Victorian Court of Appeal dismissed an appeal against a 2016 decision of the Supreme Court concerning the ability of stepchildren to make claims against the estates of their deceased step parents.

The Court of Appeal confirmed that the children of de facto spouses are ‘stepchildren’ within the meaning of that term in the Administration and Probate Act 1958 (Vic), and that a de facto stepchild relationship survived the death of the biological parent.

This is in keeping with other provisions of the Act, which do not distinguish between married and de facto couples. Where there was previously some ambiguity by what was meant by the term ‘stepchild’, the Court of Appeal’s decision confirms that it is to be given the same wide reading as biological or adopted children.

The case, Scott-MacKenzie v Bail, concerned a claim brought by a stepchild pursuant to pt IV of the Act, which allows Wills to be challenged where they do not make adequate arrangements for certain ‘eligible’ family members. Here, the stepchild’s biological parent had been the domestic partner of the deceased for 40 years, until their death in 2001. Although the stepparent passed away 15 years after the biological parent, the applicant sought to have their step relationship recognised as ongoing.

The Supreme Court at first instance held that “the relationship of stepparent and stepchild continues unless, before the death of the deceased, the relationship is ended in the sense of dissolved otherwise than by the death of the natural parent”. This was confirmed by the Court of Appeal.

Importantly, this means that stepchildren meet the ‘eligible person’ test under the Act, which then allows them to bring claims against an estate where the Will does not adequately meet their financial needs. Of course, such claimants will still need to show that the deceased did not make sufficient provision for their needs in the Will.

A key takeaway from this is that you must consider any stepchildren when writing your will, as otherwise they may be able to challenge your estate upon your passing.