Tuesday, November 30, 2021

Is there anything (stepchildren) can do** to challenge an estate?

Like many areas of the law, the ability for a disgruntled beneficiary to challenge the provisions of an estate plan depends on a range of factors, not least of which the state where the willmaker lived.

This is because each Australian jurisdiction continues to have unique rules in relation to succession legislation, and in particular, the rules that regulate the ability for eligible beneficiaries to make an application for further provision.

What is consistent in each jurisdiction is that there are rules regulating the category of persons who have standing to bring an application.

One stark example in this regard relates to the ability for stepchildren to challenge a deceased estate.

In broad terms, there are three different regimes that apply.

In summary, these are as follows:
  1. if the stepchild is wholly or partly dependent on their step parent prior to the date of death, then in South Australia, Western Australia, Australian Capital Territory, New South Wales and the Northern Territory, the stepchild may have standing;
  2. if a moral responsibility can be demonstrated, then in Victoria a stepchild may have standing; and
  3. so long as the natural parent and the step parent are married at the date of death, then the stepchild would automatically have standing in Queensland.
In Tasmania, stepchildren have no ability to challenge their step parent’s estate.

** For the trainspotters, the title of today's post is riffed from the Go Betweens song ‘Was there anything I could do’. View here: