Blended families are becoming more common where there are children from previous relationships.
Rights of stepchildren vary slightly across each state in Australia.
Who is considered a step-child?
In Victoria, there is no statutory definition of step-child for family provision claim purposes. Previously a step-child was a child of a spouse by a previous marriage. It has since evolved and now a natural parent and step-parent do not have to be married for you to be considered a step-child.
Cases have also accepted that a step-relationship does not end when the natural parent dies and will only cease when the natural parent and step-parent separate (if in a domestic partnership) or divorce (if married).
In the Victorian Supreme Court Decision of James v Rost; Langan v Rost, two step-children issued proceedings for further provision from their step-mother’s estate.
James v Rost; Lanagan v Rost [2022] VSC 98
Summary of facts
The step-mother (deceased) married Jack in 1965. The deceased had a daughter from a previous marriage and Jack also had children from a previous marriage, a son Bernard and a daughter Marianne (the deceased’s step-children). The deceased and Jack remained married until Jack’s death in 2006.
The deceased died on 9 May 2017.
The deceased’s final Will was a handwritten Will dated 1 October 2023. Probate of the Will as granted to the deceased’s daughter on 22 May 2019.
The sole asset of the deceased’s estate was an Avondale Heights property (property), valued at $920,000. The deceased and Jack lived together in the property from about 1963. The property was initially purchased by the deceased, but was transferred into both of their names as joint proprietors in 1988. After Jack died the deceased inherited the property by survivorship.
The deceased’s Will provided that the property and its contents were to be given to her daughter and her grandson jointly, and all of her jewellery was to be given to her daughter, save for, one ring which was gifted to her grandson. She made no provision for her step-children.
Bernard was 70 at the time of trial. He was a qualified school teacher, although remained unemployed. He had a number of non-disabling health conditions. Bernard’s wife of 39 years worked part-time at a supermarket. Bernard had a net asset position jointly with his wife of $810,000 and $196,883 in superannuation.
Marianne was 74 years of age at the time of trial. She was a public servant before she retired. Her husband of 27 years was a quadriplegic and Marianne was his primary carer and their combined annual income was $48,870.70. Marianne had a net asset position of $616,467.74 and $75,000 in superannuation. Marianne also had severe medical conditions.
Both of the deceased’s step-children had limited incomes and income earning capacity.
However, the Court also acknowledged that the deceased’s daughter and grandson were in greater financial need than Bernard and Marianne. The deceased’s daughter and grandson both had no assets and a low income.
The Court had to determine whether the deceased owed a moral duty to make provision for her step-children.
Decision
It was held that the deceased had a moral duty to make provision for her step-children.
The Court made the following comments:
- half of the value of the deceased’s estate was derived from Jack’s share of the estate;
- the step-children were entitled to Jack’s half share of the property, or at least a substantial portion of his notional shares of the property; and
- a provision of modest legacy to the step-children would make a material difference to their financial wellbeing and would provide greater financial security to meet any unforeseen contingencies, while still leaving greater part of the deceased’s estate available to provide for her daughter and grandson.
The Court determined that:
- Bernard was financially comfortable rather than affluent and possessed some capacity to generate further income. A modest provision would enable him and his wife to maintain their current standard of living. Accordingly, a provision of $65,000 was made for Bernard.
- Marianne was in greater need than Bernard, as she had minimal assets, no superannuation funds, or assets of substance other than her apartment. She also has demanding medical conditions which significantly affect her earning capacity. A provision of $105,000 was made for Marianne.
Key takeaways
This case demonstrates that step-parents have a moral obligation to provide for their step-children. In addition, it also highlights that even if a claimant is financially comfortable, it does not preclude them from being awarded provision from an estate.
Every case is different depending on your individual circumstances so it is important you obtain legal advice. If you are a step-child and considering bringing a claim against the estate of your step-parent, contact Hunt & Hunt’s experienced Wills & Estates lawyers.
~ with Harriet Whiteley, Graduate
