18 January 2017

Stepchildren – Can they contest my will?

In today’s world where second marriages and blended families are increasingly common, it is not unusual for clients to ask whether or not their stepchildren can contest their will.

Current Queensland legislation allows for wills to be “contested” on the basis that a person has not been adequately provided for under the terms of a will.  Only certain categories of person are entitled to make a claim of this nature, including:

  1. the deceased person’s spouse;
  2. the deceased person’s children; and
  3. dependents of the deceased at the time of their death.

But what is sometimes difficult for people to accept, is that the definition of children is not limited to simply their biological children, it also includes legally adopted children and stepchildren.

So who are stepchildren?  The answer is not as simple as it may seem.

Pursuant to the Succession Act 1981 (Qld) (“the Act”) a person is a stepchild of a deceased person if:

  1. the person is the child of a spouse of the deceased person; and
  2. the relationship of stepchild and step‑parent between the person and the deceased person did not stop due to the divorce of the deceased person and the stepchild’s parent.

It is also declared, to remove any doubt, that the relationship of a stepchild and step‑parent does not stop merely because:

  1. the stepchild’s parent died before the deceased person, if the deceased person’s marriage to the parent subsisted when the parent died; or
  2. the deceased person remarried after the death of the stepchild’s parent, if the deceased person’s marriage to the parent subsisted when the parent died.

Let’s use an example to conceptualise who is a stepchild in accordance with the provisions of the Act.

Example – Jack and Jill

  • Jack and Jill have been married for 5 years.
  • Jack has two children from a previous relationship, Sally and James.
  • Jill also has two children from a previous relationship, Mark and Matthew.
  • Jack and Jill have “traditional” or “simple” wills prepared whereby they provide for each other in the first instance and their own children (but not each other’s children) in the event that the other has predeceased.
  • Jack passes away and all his estate goes to Jill (in accordance with the provisions of his will).
  • Jill remarries Simon, 3 years later. Shortly after they marry, Simon suffers an injury and is unable to work.
  • Jill then passes away some 2 years later, and under her new will everything goes to Simon, Mark and Matthew equally.

Can Jack’s children contest Jill’s will?

Jack and Jill were married at the time of Jack’s death and the relationship between Jill and Jack’s children did not stop because Jill remarried.  Therefore, Jack’s children, Sally and James, are Jill’s stepchildren and entitled to bring a claim against Jill’s estate for further provision.

As you can imagine, a claim by Sally and James could cause some anguish between family members as Simon could possibly argue that he has a greater financial need to the assets of Jill’s estate, than all of the adult children, due to his injury and incapacity to work.

Had Jack and Jill undertaken strategic estate planning, right from the beginning, the risk of these claims could have been reduced.

What about stepchildren of a de facto relationship?

Case law has illustrated that a stepchild under 18 years of age may make a claim in the estate of a de facto spouse of that person’s parent if the stepchild was dependant on the de facto spouse.

The position, however, for adult children whom are not dependant on the de facto spouse is somewhat unclear, as section 40A of the Act refers to “divorce” and “marriage” thereby assuming that the definition of stepchild refers to a stepchild of a marriage and not necessarily a stepchild of a de facto relationship.

Estate planning for blended families is extremely important and involves careful consideration of each family member, their status in life, your assets (estate and non-estate) and how your assets are held.  Whist many people may feel uncomfortable discussing their wishes for their children (from a prior relationship) with their new spouse, discussing those wishes allow for appropriate measures to be put in place.  There are many different ways to draft your estate plan to ensure that your loved ones are provided for and their inheritances are protected in the best way possible.  As the saying goes, prevention is better than cure.

If you would like to discuss your estate planning options further, please do not hesitate to contact our wills and estate planning lawyer, Bianca Stafford on 07 4036 9700.

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