Last year, we highlighted the importance of careful estate planning through the case of McKenzie v Topp, where a stepchild was able to bring a claim against the estate of a stepparent on the basis that the stepparent did not make any or adequate provision for the stepchild’s needs. These claims are commonly referred to as Part IV claims, as they are brought under Part IV of the Administration and Probate Act 1958 (Vic).
In this estate litigation update, we highlight three recent decisions of the Victorian Supreme Court where stepchildren succeeded in their Part IV claims. As you will see, caution should be exercised if you are aware of a potential claim against your estate by a stepchild:
Alabakis v Alabakis [2012] VSC 437: A stepchild succeeded in her Part IV claim, even though it was argued that her conduct disentitled her to relief. The Supreme Court of Victoria was willing to overlook the fact that the plaintiff had little contact with her stepfather before he died and ordered the estate to make provision for her. The estate was large, which may have been relevant, and the court held that as in every Part IV case, the disentitling conduct has to be considered in light of the specific facts involved in order to determine whether the stepparent had a moral duty to provide for the stepchild.
Paola v State Trustees Ltd [2012] VSC 158: Three stepchildren succeeded on their Part IV claim, even though the estate was ‘modest’ at $558,000. Associate Justice Zammit made a point to highlight three factors the court considers when deciding on a Part IV claim brought by a stepchild:
- the mere fact of a stepchild relationship does not give rise to a moral duty;
- a stepchild needs to establish one or more of the criteria set out in section 91(4)(e)-(p) to succeed; and
- one factor to look at is whether the relationship might properly be described as that of a “parent and child”.
McCann v Ward [2012] VSC 63: A stepdaughter succeeded in a claim of her stepfather’s estate. It was a large estate, estimated at $23 million. The plaintiff was going to inherit when her mother eventually died. However, she made a claim on her stepfather’s estate based on financial need and was successful. Her stepfather acknowledged a responsibility to provide for her so the outcome was not surprising.
Conclusions — Take Care
Whilst stepchildren’s claims have succeeded in the wake of McKenzie v Topp, recent decisions of the Supreme Court of Victoria and Associate Justice Zammit’s comments in Paola v State Trustees Ltd make it clear that not every stepchild will be able to bring a claim against their stepparent. Most importantly, the mere fact of being a stepchild does not give rise to a moral duty requiring the stepparent to provide for the stepchild in his or her Will and the stepchild will still need to satisfy the relevant test in section 91 of the Administration and Probate Act 1985, with the ultimate test being whether the relationship might properly be described as “parent and child”.
More information
If you have any concerns about a stepchild bringing a claim against your estate, please contact a member of our Estate Group on (03) 8600 8885.
Note: This update is a guide only and is not intended to constitute legal advice.