The information provided below is general in nature and should not be relied upon legal advice. You should call 03 5445 1000 and speak to a lawyer at OFRM about your particular circumstances.

Can stepchildren make a claim against an estate?

Can stepchildren make a claim against an estate?

On 1 January 2015, Victorian Legislation was amended narrowing the potential claimants who could make an Application for further provision from an Estate.

In that legislation, stepchildren are listed as potential eligible persons and a recent decision of the Full Court of the Supreme Court decided that even if there was no marriage, the child of a deceased domestic partner would be treated as a stepchild for the purposes of the legislation.

In case known as Smith –v- Thwaites which was decided by Justice McMillan on 23 June 2017, a stepchild was successful in receiving a greater proportion of the Estate of her stepmother. The stepchild’s father had lived with the deceased for 38 years. Upon the father’s death he left his Estate of approximately $189,000 to the stepmother.

When the stepmother died in 2015, she owned a house in Mt Waverley which was sold for approximately $1.2 million. This property was left to the three children of the stepmother, with the stepdaughter only being left ¼ of the residue of the Estate an amount equating to $38,756.

The stepdaughter sought a ¼ share of the entire Estate. Justice McMillan did not accept that proposition but did award her a further legacy of $100,000 in addition to the $38,756 provision that was contained in the Will.

Justice McMillan gave weight to the consistently expressed wish of the stepmother that her three children should receive the benefit of the Mt Waverley property which had been acquired by her and her late husband.

The decision is an excellent demonstration of the balancing act that a Court must do when weighing up these types of claims.

This is an area of law where each matter is largely decided on the facts and it is difficult to compare one case against another case. Just remember that if you wish to make a claim seeking further provision then this must be commenced within six months from the date of the Grant of Probate.

It is important to obtain advice as early as possible from OFRM's Estates team by calling 03 5445 1000.