Can Stepchildren Challenge a Will?

When it comes to Wills and Estates, each case is different. To ensure you
have the best options, receive expert advice from an experienced lawyer. 

In today’s world there are so many types of ‘modern families,’ with second marriages, adoption, foster children and anything in between becoming ubiquitous. Considering the amount of growing blended families over the years, it’s not an uncommon question to hear, “Can a stepchild or stepchildren challenge a Will?”

What does Victorian Law Say?

Rights of stepchildren vary slightly across each state in Australia. Previously, Victoria used to be one of the most flexible states in Australia for making a claim against a Will, as eligibility to contest a Will was not specified.

However, on January 1^st, 2015, legislative reforms became effective, detailing eligible people who could contest a Will. A list of eligible people who can contest a Will is provided in the Administration and Probate Act 1958 (Vic) s 90(c), which governs an eligible person’s right rights in relation to Wills and Estates. This list includes:

• A spouse or domestic partner (registered or unregistered at the time of death)
• A registered caring partner
• Adult children
• A grandchild
• A person who was (and was likely to be in the near future) a member of the deceased’s household
• A child of the deceased (including adopted or stepchild, or someone who believed the deceased to be their parent and was treated as such) who at the time of death was:
• Under the age of 18 years old;
• A full-full time student under the age of 25;
• Or suffering from a disability.

What Factors does the Court consider with the rights of a Stepchild?

Essentially, stepchildren are considered eligible people when it comes to contesting a Will but there are variable factors the court will take into account before ruling in their favour which include:

• Closeness of the relationship between the stepchild and step-parent
• Age of the stepchild and at what time they become a member of the family and
• The level of financial, educational and emotional support the stepchild depended on from the deceased.

Example of a Court Case involving Stepchildren 

Every court case is different depending on your individual circumstances, which is why its best to consult a lawyer to ensure you have a reliable claim to make. Here is a famous example of a court case in Victoria where a stepchild was successful in making a claim to a Will:

Bail v Scott-Mackenzie 2016 – This case showedthat the death of a natural parent does not cease the relationship between a step-child and step-parent. Additionally, it demonstrated that a natural parent and new partner do not have to be married for the new partner to be considered a ‘step-parent.’

What happened? Here the plaintiff’s mother, Ms Holmes, had been in a relationship with her domestic partner for 40 years. When the plaintiff’s mother, Ms Holmes, died, her domestic partner later commenced a new relationship with another woman who he remained with until his death in 2016. In his Will, the deceased left everything to his new partner. The dispute was whether, legally, the plaintiff was to be considered a stepchild despite her mother and the deceased never being married. The plaintiff was successful in her application with the judge ruling that a ‘stepchild,’ includes the child of a domestic partner as well as a child whose natural parent in a de facto relationship dies before the remaining step-parent instead of separating from them.

At Le Brun & Associates, we understand that life circumstances and family relationships can be unpredictable. That’s why we provide a FREE 30-minute consultation with one of our fully qualified and professional lawyers to discuss the best options for you.

If you need caring, compassionate advice or more information on your rights as a stepchild or step-parent, our experienced and compassionate family and property lawyers can advise you on sensitive matters and are dedicated to supporting you with accurate, fast and cost-effective advice.

What Happens if a De Facto Partner Dies without a Will?

If you have been living in a de facto relationship and
your partner dies without leaving a Will, you need to
seek legal advice as soon as possible.

When a person dies without a Will, this is known as dying “intestate”. This means that their Estate will be distributed according to intestacy rules outlined in the Succession Act. If you have been living in a De Facto relationship and your partner passes away, you have certain rights under intestacy law and may be entitled to receive part of your partner’s Estate.

Under the intestacy rules, a “spouse” is defined as a person who was:

a) Married to the deceased at the time of their death; or
b) Party to a domestic partnership with the deceased at the time of their death.

A “domestic relationship” is when two people are not married but live together or have lived together as a couple on a genuine domestic basis. This includes a de facto relationship that has been in existence for a continuous period of 2 years, has resulted in the birth of a child.

If this applies to your relationship with your partner, then intestacy rules will be applied when distributing your partner’s Estate.

What if intestacy rules don’t apply to me? 

If you were in a de facto relationship with your partner at the time of their death but do not meet the legal definition of a spouse under the intestacy rules, you can still receive a distribution from your partner’s Estate by lodging a family provision claim as an eligible person. It is recommended that you seek legal advice as soon as possible to contest the distribution of your partner’s estate and prevent their assets being allocated against their known wishes.

Understanding Your Rights in a De Facto Relationship 

Under the intestacy rules, if your partner had no children; or you and your partner only had children together, then you as a de facto spouse are entitled to the whole of the estate, including real estate, car, boat or shares.

However, if your partner had children from another relationship, then some of the estate may also go to those children depending on the amount of money left in the estate after all debt and funeral expenses have been paid. Different rules may apply if the person left behind more than one partner.

What do I do next?

If you have been living in a de facto relationship and your partner dies without leaving a Will, you need to seek legal advice as soon as possible to determine whether you are entitled to a distribution from the Estate under the intestacy rules or whether you need to make a family provision claim.

At Le Brun & Associates, we understand that life circumstances and relationships can be unpredictable. That’s why we provide a FREE 30-minute consultation with one of our fully qualified and professional lawyers to discuss the best options for you.

If you need caring, compassionate advice or more information on your rights in a de facto relationship, our experienced and compassionate family and property lawyers can advise you in sensitive matters and are dedicated to supporting you with accurate, fast and cost-effective advice.

Contact us today on (03) 9741 6000 to discuss your requirements.

What Happens if you Die without a Valid Will?

It’s essential to seek help from a lawyer when preparing your Will to
ensure your wishes are carried out and your family is protected.

While most people agree that preparing a Will is important in order to protect your loved ones in the unexpected event of your death, studies show that on average, 45% of Australians do not have a current Will.

Dying without a valid Will is known as dying ‘intestate’ or leaving what is known as “intestacy” which can place your family’s future at risk.

Intestacy can arise:

• when a person dies without a valid Will; or
• if the deceased leaves a Will with mistakes which does not effectively dispose of all their estate.

What Happens to my Assets if I don’t have a Will?

In the event of your death without a valid Will, the distribution of your estate is determined by legislation, which declares that your closest relatives by law will receive a fixed percentage of your assets – despite what you may have intended.

You also increase the chance of other people making claims to your assets. Having a Will gives you the opportunity to put in place protective structures, such as a Will with a Testamentary Discretionary Trust. This minimises the risk of third parties gaining access to your estate after you’re gone.

How do I Protect my Family from Intestacy?

In many cases, intestacy leads to bitter and costly disputes over inheritances that inevitably reduce the size of the estate. If you pass away without a Will, the matter of the legal ownership of your assets can become a distressing burden for loved ones who are dealing with grief and loss.

Having a clear, legally valid and up-to-date Will is the best way make sure your family is protected in the event of your passing, and your assets are allocated according to your wishes.

Considerations for Preparing your Will

A Will is a legal document that clearly sets out your wishes for the distribution of your assets upon your death. It should include details of your:

• Executor – the individual or group who you would like to nominate to administer your estate.
• Beneficiaries – the people you choose to leave your assets to such as your spouse, de facto partner or children.

Preparing a Will can be a complex matter and requires careful planning and understanding. Your Will is probably the most important document you’ll ever sign, so it’s crucial that you seek professional advice from an experienced lawyer when drafting your Will. Your lawyer can explain areas of your Will that may be confusing or misinterpreted, ensuring your wishes are carried out to their full extent. Having a lawyer by your side certifies there’s no room for errors and your family is completely protected.


At Le Brun & Associates, we understand that writing your Will is an extremely important process contributing to your family’s livelihood. That’s why we provide a free 30-minute consultation to discuss the best options for you and your beneficiaries. If you need caring, compassionate advice or more information on preparing your Will, contact us today.

5 Reasons you need a Lawyer to help Write your Will

In Australia, it’s estimated that over 50% of people don’t have a legal Will, simply because they haven’t got around to organising one yet! Arranging a Will might seem like one of those ‘I’ll get around to it one day’ tasks, but without one, you run the risk of letting the court decide how your assets are distributed when you pass away. A Will gives you peace of mind that your wishes will be carried out and there won’t be any additional and unnecessary stress put on your family members once you’re gone.

While a Will is essential for everyone, they’re not always straightforward to prepare. The nature of your Will depends on your personal situation and assets. If you’re unsure about what should be included in your Will, there are many benefits in seeking professional advice.

Here’s 5 reasons why you should consider using a lawyer to help write your Will:

1. DIY Will Kits can be Risky

Writing a Will can be stressful and confusing. Many people choose to write their own Will using DIY kits from the Post Office with the intention of saving time and money, but even the slightest mistake can result in complications and added costs down the road. Hiring a professional will give you the assurance that any loose ends have been tied up correctly.

2. Legal Compliance

Wills can be complex as they’re surrounded by many different laws and requirements. These laws aren’t always easy to understand or apply to your individual situation. Many people forget to incorporate certain assets such as Superannuation or leave out other important belongings altogether. Failing to complete a Will or signing it incorrectly can result in delaying the distribution of your assets or making it invalid.

3. Objective Advice

DIY Will Kits can be risky. In some cases, even a
simple mistake can make your Will invalid.

Along with expertise, a lawyer can provide objective advice that’s completely separate from your family. By bringing in a lawyer to help, you’ll get an unbiased opinion about how you can arrange your future estate and planning. This is particularly necessary when children are involved because you’ll need to decide who will care for them. Do you have a child with a disability? Read our blog on Special Disability Trust Wills.

4. Save Time & Energy

Writing your own Will can be a highly emotional process to go through alone. It’s also likely that your personal situation will continue to change once you’ve written your Will – if you get married, divorced or have children for example. This means you’ll need to keep reviewing and changing your Will. Hiring a lawyer to write and manage your Will takes the burden away and ensures you stay up-to-date.

5. Ongoing Support

Many situations may arise that you can’t predict such as outliving your beneficiaries. Getting advice from a lawyer makes sure you have ongoing support and a contingency plan in place for various circumstances that may arise.

At Le Brun & Associates, our role extends beyond completing your legal Will and our experts are always happy to provide ongoing support and advice.

Our partner, Andrew Sutton is an ongoing Friend of the Salvation Army and has regularly volunteered his time and services at their local community Will days in Altona, Williamstown & Werribee. On these days, Andrew prepares up to 30 Wills free of charge for those who cannot otherwise afford a lawyer.

Andrew also visits clients with limited mobility at their homes, in hospitals and aged care facilities to help them prepare their Wills and ensure that their wishes are carried out after they pass away.

Read more about Andrew here or book a free 30 minute consultation with him today.

Appointing an Executor of your Will

Choosing an Executor of your Will can be a difficult decision to make. The Executor is the person (or several people) you allocate in your Will to take care of all your personal, financial and legal affairs after you pass away. Being an Executor is a big responsibility, that’s why it’s important to appoint someone you trust who is also capable of dealing with complex matters.

If you’re unsure about who to choose, read on to understand exactly what the role of an Executor involves and what your options are:

What’s the Role of an Executor?

If you’re unsure about who to appoint as the
executor of your Will, seek professional legal advice.

Your Executor ensures all of the instructions in your Will are carried out. They are responsible for administering your estate (any money, property or goods) and overseeing the distribution of your assets to your beneficiaries. In some cases, it can be a very complicated job and may take many months or even years to finalise. The amount of time it takes to manage your estate depends on various factors including:

• The size and nature of your assets
• If your Will is contested in court by someone
• Your beneficiaries challenge what’s in the Will

The three main tasks your Executor needs to organise include:

1. Applying for Probate (the Order made by the Court that allows them to act in accordance to the Will and ensures it’s valid).
2. Selling any assets (if instructed to do so in the Will) as well as deciding on the time to sell and what price to settle on to achieve the best outcome for the beneficiaries.
3. Paying any debts and ensuring Inheritance Tax, Capital Gains Tax and Income Tax are taken into account.

If something is not addressed properly by your Executor, they could be personally liable for any losses to beneficiaries and creditors. To avoid this, we recommend they seek professional legal advice throughout the process so they know their rights.

Can a Family Member or Friend be the Executor of my Will? 

Anyone over the age of 18 can be appointed as the Executor of your Will, and this includes friends and family members. Often people appoint their spouse or if they’re older, they may choose their adult children to take care of their estate. If you are going to choose a friend or family member, here are some things you might want to consider first:

• Will they have the time to manage your estate? If your family member has other commitments such as working, raising kids or if they living overseas, managing your estate can be a time consuming and stressful job.
• Will choosing your Executor cause family politics? Sometimes siblings and other family members don’t always see eye-to-eye and the responsibility can put a strain on family relationships.
• Is organising your affairs going to cause emotional stress? Most of the time family members need time to grieve, and taking on the responsibility of being an Executor can be overwhelming.

Regardless of who you choose to be your Executor, you need to make sure you consult them before drawing up your Will, so they can understand what’s expected of them.

Are there Other Options? 

If you do not want to burden your family or friends with managing your estate after you’re gone, you can appoint a legal professional. Appointing a professional estates & probate lawyer as the executor of your Will has significant advantages which include:

• • Relieving your family or friends of any time consuming responsibilities while managing your estate
  • Giving your beneficiaries reliable, efficient and prompt services
  • Mediating any disputes which arise between family members
  • Defending your estate from any legal attack

At Le Brun & Associates, we understand that preparing a will can be a difficult process, that’s why we provide a free 30 minute consultation to discuss your options. If you need advice or more information on Wills & Estates and appointing an Executor contact us today.