Laurace Bail v John Ewen Scott-MacKenzie [2016] VSC 563

By 3 October 2016Recent Cases
claim-by-a-child-of-the-defacto

It is not unusual for defacto partners to have children from a previous relationship and often the children see the defacto partner as their stepparent and vis versa whereby the defacto partner view the children as their own biological children.

This case involves a claim by a child of the defacto of the deceased. The plaintiff claims that she is an eligible person to whom the deceased failed to make adequate provision for her proper maintenance and support pursuant to Part IV of the Administration and Probate Act 1958 (the Act). The Plaintiff claims she is the deceased’s stepchild.

The Plaintiff’s mother was the domestic partner of the deceased for over 40 years until she died on 26 October 2001. After the death of the Plaintiff’s mother, the deceased commenced a new relationship.  The deceased died 15 years later on 17 January 2016 and left a Will giving his entire estate to his new partner. The deceased left no provision for the Plaintiff. The deceased never married and had no biological children.

The Defendant’s submission was that the Plaintiff was not an eligible person able to make a claim under the Act because the deceased and the plaintiff’s mother were never married. The Defendant noted that the Act contains no definition of stepchild or stepparent and therefore it was necessary to look at the natural and ordinary meaning of the term ‘stepchild.’ The Defendant referred to the Oxford English Dictionary which defined ‘stepdaughter’ as “a daughter, by a former marriage, of one’s husband or wife.”

The Defendant submitted in the alternative that even if the Plaintiff is the deceased’s stepchild, this ceases upon her mother’s death.

The Court had to determine the following:

  • Whether the Plaintiff is a stepchild within the meaning of the Act, even though the deceased was not married to her mother? and
  • If the Plaintiff was a stepchild of the deceased, did their relationship cease as at the date of her mother’s death?

The Court referred to the Explanatory Memorandum to aid in the interpretation of the term ‘stepchild’ which indicated that the legislative intent was to provide a wider meaning of ‘stepchild.” Therefore, the Court found that the legislation should be interpreted to include a stepchild arising from a defacto relationship as well as one where the parties were married.

In considering whether the stepparent and stepchild relationship continues after the death of the Plaintiff’s mother the Court referred to a number of cases. The cases indicated that the relationship between stepparent and stepchild depends on the continuity of the relationship of the stepparent and the domestic partner. Therefore, the relationship of stepchild and stepparent continues after the death of the parent, but not after the divorce of the parent from the stepparent.

The Court held that the Plaintiff was an eligible person and the stepparent and stepchild relationship continued unless, before deceased’s death, the relationship dissolved otherwise than by natural parent’s death.

 At Estate Lawyers, we are experienced practitioners and can provide you with advice as to the merits of your claim and assist you with bringing a claim against the estates. Call us now on 03 9088 3185 (Melbourne) or 02 9188 2032 (Sydney).

This article was written by:

Linda Hart
Senior Associate
Direct Tel: 03 9088 3178
Email: [email protected]

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