Hands with ring

In further reassurance and recognition of de facto spouses, the Victorian Court of Appeal held this week that, when it comes to challenging Wills, the children of de facto spouses are to be treated equally to the children of married spouses.

In Victoria, the law allows an ‘eligible person’ to make application to the Court if he or she believes that the Will of a deceased person has not made adequate provision for them. Loosely defined, eligible people include:

  • spouses or domestic (de facto) partners of the deceased,
  • children or step-children (under 18 years of age, full-time students between 18-25 years, or children with a disability), and
  • a member of the deceased’s household.

The purpose of legislation allowing these claims is to ensure that willmakers make adequate provision from their estate for persons for whom they have a duty to provide.  Where this has not happened, the court has a discretionary power to intervene, and to make an order modifying the legal effect of the will.

Within the legislation, spouses and domestic partners are treated equally as eligible persons. The Court has now confirmed that the meaning of the word ‘stepchild’ in the current legislation encompasses a child of a previous domestic partner.

In handing down its decision, the Court noted that domestic partnerships are common these days. It said: “[Domestic partnerships] have become considerably more common than they were, say, 30 years ago. Domestic partnerships can, and frequently do, have all of the appearances of partnerships that are marriages and have been recognised by the Parliament as a legitimate alternative to marriage.”

There are time limits to make a claim on a deceased estate.  If you think you haven’t received adequate provision from a deceased estate, contact Grainger Legal for an urgent, no-obligation, free appointment.