Stepchildren contesting a Will and the relevance of a statement of wishes: Plummer & Anor v Montgomery (2023)

What defines a stepparent and stepchild?

A stepparent is one who is not the legal parent of a child but is married to, or is in a de facto relationship with, the legal parent and treats the child as a member of the family. The stepchild and stepparent relationship can continue to exist even when the legal parent and stepparent are no longer in a relationship.

Can a stepchild contest a Will?

The specifics of who can contest a Will varies in individual states but in NSW eligible persons who have been left out of a Will or received less than they believe they were entitled to, may be able to make a family provision claim. A legal child of a deceased is one of the eligible categories. However, stepchildren are not explicitly mentioned in NSW law as being eligible to make such a claim.

A stepchild in NSW (unlike, for example, in Queensland) would only be eligible to make a claim if they can demonstrate to the Court that there are factors which warrant the making of an application and that they can prove that they:

-  were wholly or partly dependent on the deceased and were, at any time, a member of the same household as the deceased, or

-  were living in a close personal relationship at the time of the deceased’s death.

A stepchild must also prove that there are factors warranting making their application which demonstrate that they were an object of ‘testamentary affection’.

The Court will consider the circumstances, including the history and closeness of the relationship between the parties, the age at which the stepchild became a member of the family and the extent to which they were dependent. Once these credentials are established, the Court will consider whether adequate provision for the proper maintenance or advancement in the life of the applicant has been made by the deceased. Factors considered include the size of the estate, the applicant’s needs and the competing needs of beneficiaries under the Will and other claims by eligible persons.

The illustrated case below involves a $1.2m estate, a deceased stepmother and two adult stepchildren (aged 65 and 61) of her predeceased husband.

Case Review: Plummer & Anor v Montgomery (2023) NSWSC 175

In this case, no provision had been made by a stepmother in her Will for her two stepdaughters. The stepdaughters sought to contest the Will by bringing a family provision claim.

The daughters were considered eligible to make a claim because they had lived with their father and stepmother as children and were partly dependent on both of their parents even though they had been primarily cared for by their mother following their parent’s divorce. The stepdaughters also had low incomes and could demonstrate financial need.

However, the stepdaughters’ claim failed because of the remoteness of their relationship with their stepmother. There had barely been any contact between them for more than 15 years prior to her death and none whatsoever after the stepdaughters’ father had died. The deceased also made it clear that, in a statement of wishes that accompanied her Will, she did not want her stepdaughters to benefit from her estate at all because of their behaviour towards her. In their judgment, the Court stated:

‘Although there are cases in which the relationship of a stepparent and stepchild may develop into a relationship which gives rise to the making of provision, this is not such a case.’

Is a Testamentary Statement of Wishes worthwhile?

A statement of wishes or reasons is a document drawn up to accompany a Will. Unlike the Will, it is not legally binding but instead provides guidance to those dealing with a deceased person’s estate.

In NSW, as in many other states, any evidence of the testamentary intentions of the deceased person, including evidence of statements made by them, can be considered by the Court.

In the illustrated case, as well as her Will, the deceased left a ‘statement of wishes’ in which she set out her reasons why her stepdaughters were not to benefit from her estate. The statement stated that the stepdaughters had been responsible for causing her considerable anxiety and distress and had displayed ‘intolerable behaviour’ towards her, particularly at a time when her husband’s health had been failing. She considered that her decision to exclude the stepdaughters from her Will was ‘just and reasonable’ in the circumstances.

In deciding to decline to make an order for a family provision, the Court ‘also remembered the deceased’s testamentary wishes, as expressed not only by the terms of [her] Will but also by her written statement’.

Thus a statement of wishes can be influential, as it was in this case. That said, it is important that it reinforces the Will and does not contradict it. It should be prepared in conjunction with the Will and, as with the Will itself, be regularly reviewed.

What does it mean?

The majority of family provision claims do not reach Court being resolved before that step by mediation or another form of dispute resolution. However, there have been an increased number of cases involving stepchildren in NSW.

Although the illustrated case was lost by the claimants, it illustrates how it is possible for stepchildren to make a successful claim on a stepparent’s estate. Stepchildren may be eligible and be successful in a Will contest if they had a close relationship with the stepparent but were not adequately provided for in the Will.

Whether a stepchild considering contesting a Will or a stepparent is concerned with protecting one’s testamentary wishes, it is important to be aware of rights and obligations under the law. It is a reminder that if entering a new relationship, to give consideration as to whether to include any children of a partner in their Will and, if not, why not.

Contact our Wills and Estate Planning Lawyers based in Sydney, NSW

If you have any questions about making a Will where there are stepchildren involved, or a stepchild considering making an application for a family provision in NSW or elsewhere in Australia, please contact the experts at Szabo & Associates Solicitors on 02 9281 5088 or complete the online contact form.