a person whose parent married the step parent) and the step-child was never adopted by that step-parent. Melbourne, VIC 3000, Tel: (03) 6165 1118 In sum, stepchildren can contest a will, so long as they are named beneficiaries of at least one prior will, or are in one of the few states that allows for stepchildren to be intestate heirs AND there are no other higher ranking intestate heirs. Email: info@willsinfo.com, CONTESTING A WILL: ISSUES FOR CHILDREN AND STEP-CHILDREN WHO WISH TO CONTEST A WILL. What does "without bond" mean in a Will? In this site, the term “step-child” means a person whose parent has married some-one who is not their parent (i.e. The court viewed this as a balancing exercise, weighing, on the one hand the fundamental right of testamentary freedom (or the right not to make a will) with the court’s powers under the Inheritance Act. Do you have rights to contest the Will in any of these circumstances? A step child could seek to challenge the validity of their step parent’s Will if there is evidence of undue influence, lack of testamentary capacity or that the step parent did not know and approve the contents of the Will. We have written about how to contest a will in Florida, California, New York, Texas, Ohio, and Pennsylvania, to … Margaret passed away in June 2013, without leaving a will. Second Marriages and Step-Children. A step child is entitled to contest their step parent’s will (or if there is no will, the intestacy rules) by bringing a claim under the Inheritance Act and we have recently succeeded in just such a claim, winning the step child’s case at trial. He last worked in April 2015, before taking voluntary redundancy to look after his father and was still attempting to finish off an Open University Degree that he had started may years earlier. Section 3(1)(g) – any other matter that is relevant. This has caused an increase in the number of stepchildren contesting Wills. Can You Challenge a Marriage After Death? I am a step-child of the deceased: am I eligible to challenge the Will? In reaching his decision, the Judge considered the factors set out in Section 3 of the Inheritance Act. Notify me of follow-up comments by email. In Queensland a step-child is treated the same as a child for the purposes of contesting Wills. Level 27, South Tower When both partners go on to remarry and have even more kids, the overall family structure immediately becomes complicated. In the recent case of Pendlebury v Brooke, Chris Green represented the claimant, Robert Pendlebury, in a dispute with his step brother, Matthew Brooke, following the death of his step father, James Brooke. Robert had, until his mother’s death, enjoyed a normal father/son relationship with James. How difficult is it to contest a Will, and should you do it? This webiste constitutes attorney advertising. Step children are not mentioned as "descendants" within the line to inherit. If a stepchild was treated as a child of the family by a married stepparent or was financially dependent on a stepparent who has died, and there is either no or inadequate provision on the death of the stepparent, he or she can make an application to the court under the Inheritance (Provision for Family and Dependants) Act 1975. It does not take into account the many variations in the laws between the various Australian States. Therefore, if there is no valid will, the stepchildren will typically not inherit from the stepparent. If all of the wills are knocked out, we revert to the law of intestacy, which only includes the biological descendants of the deceased, unless in one of the states that treats them as intestate heirs. His income was limited to student loans, purportedly spent on tuition fees, and the capital from the Estate of which there was £190,000 left at the time of the trial. The Judge accepted that Robert was dependent on his wife’s earned income and a combination of state benefits. As a result of that, Jon told Robert to stay away from James and this resulted in an estrangement which lasted until James’ death. They are treated as any other non-descendant beneficiary. Some states include stepchildren as interstate heirs, but only if there are no other intestate heirs, i.e., no children, no parents, no siblings, no cousins, nieces, or nephews. So when you are making a Will and you wish to include a step-child as a Beneficiary, it’s important to know that the Will should refer to the step-child by name (for example, “my step-son Colin”) and not as “my child” or “my children”. It was likely she would retire in six or seven years’ time. More complicated family set-ups can mean that deciding how to make a Will is not always straightforward, and that not everyone will feel the result is fair. Blended families with complex family structures, that include one or more stepchildren, are becoming increasingly common throughout Australia and NSW. Succession law is not uniform throughout Australia. If you are a step-child who has lost your step-parent with whom you have lived your entire life, what do you do? Can non beneficiaries (adult step children) contest a will in which they are not included? The normal requirements of will contests would still have to be met. Inheritance Act claims by adult children, particularly adult step children, are among the most controversial and bitterly contested cases brought under that piece of legislation. What if they left their entire estate to your step-parent? The contents of this page is general information only and should not be considered to be legal advice. Margaret passed away in June 2013, without leaving a will. In addition to (or instead of) using a will, you can also leave gifts to your step-child using a number of other estate planning tools. Can CWPL boost the pool with assets that were disposed of on or before death? Use for marketing or solicitation is prohibited. This seemed unfair, especially as James’ estate included everything he had inherited from Robert and Jon’s mother. The Court therefore concluded that he was unfit to work and would remain so for the foreseeable future. This increase is in direct correlation to rising divorce rates. The Judge accepted that Robert’s previous employment of delivering furniture and security work was no longer physically possible and that he had no experience of clerical or administrative work. In modern families, it is common for stepchildren to be treated as full biological children for all purposes, including inheritance purposes. However, before you can mount such a claim you need to be a “disappointed beneficiary.” Chris’ instincts were proved to be correct when, in May 2019, the trial Judge agreed that Robert should receive financial provision and made an award of £70,000 from his step father’s estate. The normal requirements of will contests would still have to be met. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Download Legal Documents, Forms, & Contracts! Please note that this is a guide only and you should speak to CWPL for advice on your individual circumstances: the law varies from State to State.. For general information on how to contest the validity of a Will, click here. If you would like to speak to Chris Green on the subject, ‘Can a step child contest a will or intestacy rules?’ then you can call him on freephone 0808 1391606 or email us at info@sleeblackwell.co.uk. Robert had, until his mother’s death, enjoyed a normal father/son relationship with James. It is interesting to look at how the Judge dealt with each of these factors in some detail, as it gives us an insight into how claims made by an adult child under the Inheritance Act are decided: Section 3 (1)(a) – the financial needs and resources of the claimant, This is one of the key factors when considering, ‘Can a step child contest a will or intestacy?’. What if the deceased dies without a Will? The dispute arose on James’ death in December 2016. He produced a schedule showing annual expenditure of £13,289.26. If you have stepchildren and you want to understand their rights, or you are a stepchild, contact us today. In the recent case of Pendlebury v Brooke, Chris Green represented the claimant, Robert Pendlebury, in a dispute with his step brother, Matthew Brooke, following the death of his step father, James Brooke. Can a step child contest a will of a step parent? In some situation, however, such a long standing estate plan can be altered right before the death of the stepparent, oftentimes by one of the biological children who do not believe that it is fair to share their inheritance with step-siblings. However, Robert had been upset by the speed with which James and Matthew had administered Margaret’s estate. Where a person resides and passes away dictates who can contest their Will for provision if they are not provided for.
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