Can a step child in Victoria contest a Will?
Can a step-child in Victoria contest a Will?
The Administration and Probate Act 1958 (Vic) Section 90(c) & (f) sets out the law which governs step-children and their rights to contest a Will to get a share or larger share of an estate.
Eligibility of a step-child to contest a Will
A step-child is eligible if they are:
- An adult (over the age of 18 years) with a financial need; or
- A minor under the age of 18 years; or
- A minor under the age of 18 years with a disability; or
- A full-time student between 18 and 25 years.
What if my natural parent and his or her partner are not married?
It does not matter. You are recognised as a step-child who is eligible to contest a Will.
The 2016 case of Bail v Scott-Mackenzie made it clear your natural parent and his or her partner do not need to be married for you to qualify as a step-child.
Do I cease being a step-child when my natural parent dies?
The answer is no. If your natural parent dies whilst married to or in a domestic partner relationship with the step-parent, your status as a step-child does not end.
Do I cease being a step-child when my natural parent and step-parent's relationship breaks down?
The answer is yes. If the relationship is over, your status as a step-child ends.
What else is relevant to whether a step-child will receive provision from a deceased estate?
The Court will consider a range of factors which will include:
- The step-child's relationship with the deceased including at what age the claimant became a step-child;
- The level of dependence between the step-child and the deceased; and
- Whether the deceased's Will and/or Intestacy fails to make proper provision for the step-child's proper maintenance and support having regard to their financial circumstances and needs.
Time limit to contest a Will
A step-child can only contest a Will within six months from the date of the Grant of Probate or Letters of Administration if there's no Will.
The Court can authorise a claim outside the time limit if:
- The delay is explained; and
- The estate has not been distributed or prejudiced due to the delay
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