As noted in our prior post, a Part IV Application under the Administration and Probate Act 1958 ("the Act") is a claim for family provision made against a deceased estate. An Application under this Act is made in circumstances where the deceased’s Will does not make adequate provision for the proper maintenance and support of a person for whom the deceased had a responsibility to provide. Note that this is not an application that challenges the validity of a will but rather an application that accepts the will as valid, however, makes the claim that adequate provision has not been provided for the proper maintenance of an eligible person.
A stepchild may feel as though their deceased step-parent took benefit to their natural parent’s wealth on their death and that they ‘missed out’ on inheritance at this point. Therefore, they feel that they are entitled to their step-parent’s assets.
Under the Act, a step-child is an eligible person to challenge a will in the following circumstances:
a. A minor under the age of 18; or
b. A full-time student under the age of 25; or
c. A person suffering from a disability; or
d. An adult who is struggling to provide for his or her own financial needs.
Of course, even if the above is true, the Court will still assess a number of other factors in determining the step-child’s claim. These include:
The general nature of the relationship between the parties, including the continuance (or non-continuance) of the relationship if the step-child’s natural parent predeceased the step-parent;
The age that the claimant became a step-child of the deceased; and
The level of dependence of the step-child on the deceased.
It is also important to note, that the Supreme Court determined in the 2016 case of Bail v Scott-Mackenzie that a person is still considered to be a step-child of the deceased whether or not that person’s natural parent is married to the deceased, a domestic relationship also qualifies. The Courts have also determined that the step-relationship does not end with the death of the natural parent of the child, it only ends with separation or divorce.
In the recent case of James v Rost; Langan v Rost [2022] VSC 98, the Court held that the deceased had a moral duty to provide for her step-children. Associate Justice Daly made the following key comments in her decision:
"imposing a moral duty upon a testator in favour of step-children in certain circumstances is that, in many such cases, the step-children have on occasion of the death of their natural parent stepped aside in order to protect the resources of the surviving spouse…”.
“[a step-child’s] forbearance from making claims against the estate of their natural parent has been considered to be a material contribution to the resources of the surviving spouse which warrants recognition in the disposition of their estate…”
At every stage of contesting or challenging a Will it’s important to have sound, experienced legal advice. We have the skills to negotiate on your behalf to avoid costly court fees, but if it comes down to court, we also have the skills to fight on your behalf. Andrews Crosthwaite regularly accepts instructions to commence Part IV proceedings. To find out more or to arrange a consultation with an experienced estate lawyer in Heidelberg, give us a call on 9450 9400.
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