When a stepchild has been left out of the will of a deceased step-parent
A step-parent can be in a difficult position when making a will depending on the circustamces. In a Queensland case1 a step-parent’s will was challenged. In that case a stepchild sought provision out of the estate of his step-mother, a widow. Her husband, and the applicant’s father had pre-deceased her. She had no children of her own, that is no natural children, so no descendants: only the applicant her step-child, and he was an only child.
Before the applicant’s father died, he and his wife each made wills in similar terms. Basically these were all to each other, then on the first to die, in equal proportions to the the applicant and a nephew.
New will made
On the applicant’s father’s death, the step-mother was the sole beneficiary of his estate. After selling various assets, she made a new will. At her death she left an estate of around $3 million to her nephew and niece, nothing to her stepchild. The step child was left out. will. He brought legal proceedings under Part 4 of the Succession Act 1981 (QLD) to seek provision out of her estate.
Part 4 consists of sections 40 – 44 which set out the legal rules on family provision. It contains definitions, the meaning of stepchild, the estate of deceased person liable for maintenance, powers of the Court among other matters.
Section 41 of the Succession Act 1981 makes a deceased person liable for the maintenance of certain persons, whether the person died with or without a will – for the proper maintenance and support of the deceased person’s spouse, child or dependant.
Stepchild is treated the same as a child
Under section 40 of the Succession Act 1981 (QLD), a stepchild is the same as a child. It states:
..child means, in relation to a deceased person, any child, stepchild or adopted child of that person.
The Court had to determine whether the applicant was left without adequate provision for his proper maintenance and support; and if so, what provision should be made.
The estate was substantial the Court said; the product of joint efforts and management of both the father of the applicant and the stepmother. The Court found the applicant had a good relationship with his father, and was a dutiful and respectful step-son to her. Despite the cordial facade by the stepmother, the Court found that she had felt no warmth towards her stepson. No evidence was put that she was close to the beneficiaries named in her will. The applicant was found to be in a modest financial position with no real prospect of advancement.
In conclusion the Court was satisfied that she was under a moral duty to make provision out of her estate for her step-son, and that she had neglected to do so by making no provision. The Court ordered that an amount should be paid to the applicant from the residue of the estate.
Stepchildren challenging a step-mother’s will
In another Queensland case a claim was brought by seven step-children for adequate provision out of their deceased stepmother’s estate.2 The step-children had no family relationship with their deceased stepmother, who died aged 84. The claim for proper maintenance and support was brought by two of them, and the others joined. In all there were seven applicants, all being children of their father from his first marriage, and stepchildren of the deceased. Their father had died some years before.
Part of the stepmother’s estate had derived from the step-childrens’ father. There was evidence that the father had sought to make provision, as best he could in his circumstances, between all his children with their varying needs, and his second wife. However the deceased left everything to an elderly friend, who had also acted as a carer in her later years. The stepmother had no family of her own, that is, no natural children.
Could any of the stepchildren make a claim?
The Court had to decide whether any or all of the seven stepchildren, could make a claim for family provision. Succession law in Queensland requires that the first hurdle an applicant needs to show is that the deceased failed to make adequate provision from their estate for the applicant’s proper maintenance and support: section 41(1) of the Succession Act 1981.
But in this case where the stepmother, who has no established relationship with any of the stepchildren, was she under a moral obligation to those stepchildren because her estate contained assets originating from the childrens’ father, and which may otherwise have found their way to them? Another issue for the Court was the extent to which the father’s assets comprised the deceased’s estate.
The meaning of stepchild and when the relationship between stepchild and step-parent stops
The Queensland succession legislation makes it clear when the relationship between a stepchild and step-parent stops. See the provisions in section 40A of the Succession Act 1981 (QLD).
The Court ordered that further provision be made for the proper maintenance and support out of the Estate for two of the stepchildren. This was because they were in the most necessitous circumstances of all the applicants so as to place them in a category which should have attracted the support of the deceased. The others’ claims were dismissed. The Court contrasted what it said was the extreme need of these two applicants with the slightly better circumstances of the other stepchildren and the comfortable circumstances of the sole beneficiary named in the will. It was relevant that some part of the deceased estate originated from their father.
Different points of view on who can be a stepchild in a Victorian case was considered by the Court there and who should participate in the inheritance.
1. Currey v Gault  QSC 27
2. Freeman v Jacques  QSC 200
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