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Meaning of stepchild when contesting a will

Inheritance in domestic relationships and stepchildren

A stepchild’s eligibility under the statutory rules for seeking provision from a step-parent’s deceased estate can be difficult.
In a Victorian case1 the executor of a deceased estate applied to the Supreme Court to have a claim for family provision dismissed. The claim was brought by the adult daughter of the deceased’s former domestic partner, who had died some years before.  She had been left out of his will, despite assurances and promises to the contrary. The deceased had left everything to his new domestic partner.

Was she ‘eligible person’

The daughter/step-daughter claimed to be the deceased’s stepchild, because her mother was the domestic partner of the deceased for over forty years. Their relationship only ending when her mother died.  She claimed she was therefore an ‘eligible person’ under the law, and to whom the deceased failed to make adequate provision for her proper maintenance and support, as provided under Part IV, Family Provision, of the Administration and Probate Act 1958 (VIC) and as amended in 2014.  The deceased had never married and had no natural children.  When the mother died the deceased then commenced a domestic relationship with another lady, and left his whole estate to her.

Not a ‘stepchild’

The executor (in defence of the deceased’s will2) argued that the adult daughter  was not an ‘eligible person’ as defined in the law because she was not a ‘stepchild’ within the meaning of the legislation; and had no prospects of success.

A family provision order has the effect of altering the will of a deceased or the intestacy provisions applicable to a deceased’s estate. There are no rights at general law to alter the distribution of a deceased’s estate otherwise than in accordance with a testator’s wishes.

The issues for the Court to determine were:

Eligibility of a stepchild to make a claim for provision

  • Whether she was an eligible person under the definition given for an ‘eligible person’ in section 90 of the Administration and Probate Act 1958. In recent times the Victorian Parliament passed changes to the eligibility rules for applicants seeking family provision under the Act – set out under s 90 of the Administration and Probate Act 1958 (VIC), link above.   For anyone wishing to make a claim for provision out of a deceased’s estate, it is necessary they fall within one of the categories in s 90.

Whether a stepchild of the deceased in the circumstances

  • Whether a child of a former domestic partner of the deceased is a stepchild of the deceased.

When does the step-child/step-parent relationship end?

  • Whether the relationship of step-child to step-parent ends on the death of the natural parent.  Does the relationship survive the natural parent’s death when they die first?

No definition for ‘stepchild’ given under the Act

Section 90 of the Act states that an “eligible person” means:

(a)  a person who was the spouse or domestic partner of the deceased at the time of the deceased’s death;
(c)    a stepchild of the deceased who, at the time of the deceased’s death, was—

 (i)      under the age of 18 years; or
(ii)     a full-time student aged between 18 years and 25 years; or
(iii)     a stepchild with a disability;

(e)  a former spouse or former domestic partner of the deceased if the person, at the time of the deceased’s death— …
(f)  a child or stepchild of the deceased not referred to in paragraph (b) or (c);
(g) …to (k)..

A stepchild can be an “eligible person” under the Act, but the problem was that the legislation does not define the word ‘stepchild’ itself.This meant that if the applicant plaintiff was not a stepchild of the deceased, then she is not an eligible person under the Administration and Probate Act, and therefore cannot make a claim for provision from his estate.

Different points of view on who can be a stepchild

Not surprisingly both sides had different interpretations.  The applicant’s main argument was that as she was a child of the former domestic partner of the deceased, she can be categorised as a stepchild and so an ‘eligible person’.

The defendant executor said that the statute contained no definition of stepchild or like terms, so it was necessary to look at the ordinary meaning of the term ‘stepchild’. He argued that the marriage relationship was intrinsic to working out the meaning.  As the deceased was never married to the applicant’s mother, it followed that the applicant could not be a stepchild of the deceased and so not eligible to apply for provision.

In the end the Court concluded that the intention of the Parliament in laying down who can apply for family provision included the child of a parent who was in a domestic partnership with the deceased.

Stepchild continued to be the stepchild of the deceased

As to when the relationship between step-parent and step-child ends or continues, the Court said that if the natural parent died before the deceased, and at the time were still in a domestic partnership with the deceased, then the stepchild continues to be the stepchild of the deceased, for the purposes of eligibility provisions of the Act.

The Judge said that in his view the inclusion in the definition of ‘eligible person’ under the legislation of a domestic partner of the deceased at the time of the deceased’s death, with equal status to a spouse, is an indication that the legislature may have intended that stepchildren of domestic partnerships should be encompassed in the meaning of stepchild.  The Judge concluded that the plaintiff was a stepchild and an eligible person to make a claim for family provision.

On the other issues the Court said that:

By analogy with the common law position of a stepchild of a marriage, the relationship of stepparent and stepchild of a domestic partnership for the purposes of Part IV ends if, before the death of the deceased, the domestic partnership ends otherwise than by the death of the parent.  That is, if the domestic partnership ends by complete separation, or what might loosely be called dissolution.

But, if the domestic partnership remains undissolved at the time of death of the natural parent, again by analogy with the position at common law, the relationship of affinity between stepparent and stepchild continues.

What the Court of Appeal said

The executor appealed to the Court of Appeal3, but it was dismissed. The Court of Appeal said the case was a question about the statutory construction on the issue of the meaning of the word ‘stepchild’, in the definition of ‘eligible person’ in s 90 of the Act.   The Court concluded that the child of the deceased’s former domestic partner was the deceased’s stepchild and was eligible to make a claim for family provision.


1.  Bail v Scott-Mackenzie [2016] VSC 563
2.  Defending the deceased’s intentions as expressed in their will is part of the role of being an executor. 

3. Scott-Mackenzie v Bail [2017] VSCA 108

B Stead
BHS Legal, updated 26 August 2021

Important notice: This article is intended for general interest and information only. It contains general information and is not specific to anyone’s personal circumstances. It is not legal advice nor should it be used as such. Always consult a legal practitioner for specialist legal advice specific to your needs and circumstances and rely upon that. While every effort is made to ensure accuracy at the time of writing applicable laws may change.

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Historic Dunolly Courthouse 1858, Victoria. B Stead.