This is the sixth in our series of articles on the uncertainties of death and busting some common Estate Planning myths.
The Uncertainties of Death Series
- The Uncertainties of Death Part 1: What Happens Without a Will?
- The Uncertainties of Death Part 2: Can You Have More Than One Spouse?
- The Uncertainties of Death Part 3: Does Your Will Control Your Superannuation?
- The Uncertainties of Death Part 4: Can a Token Gift Prevent a Will Challenge?
- The Uncertainties of Death Part 5: Can a Court Make a Will After Loss of Capacity?
- The Uncertainties of Death Part 6: Can My New Partner’s Children Challenge My Will?
- The Uncertainties of Death Part 7: Can I Make My Own Will?
- The Uncertainties of Death Part 8: Can a Will Appoint a Guardian for a Child?
- The Uncertainties of Death Part 9: How Often Should I Update My Will?
Myth: “My new partner’s children can’t challenge my Will… Right?”
Wrong!
There are many misconceptions about who can “challenge” the proposed distribution of an estate.
One common misconception is that only “blood” relatives can pursue a claim.
This is certainly not the case. The categories of eligible applicants can include your step-children. They can also include children of your spouse or de facto partner who fall within the relevant legal definition.
Under the Queensland Succession Act 1981, a stepchild can fall within the definition of “child” for a family provision claim. You can find the relevant legislation on the Queensland Government legislation website.
However, eligibility to make a claim does not mean that the claim will succeed. It also does not mean that the person will automatically receive an inheritance.
The court considers several factors when deciding whether a challenge will succeed, including:
- The level of need of the challenger;
- The size of the estate;
- The nature of the relationship between the challenger and the deceased; and
- Other competing claims on the estate.
There are strategies that can help minimise the effect of any challenge.
A carefully structured estate plan can help ensure that only the people you intend to benefit do so.
Can my new partner’s children really challenge my Will?
Yes, in certain circumstances.
If your new partner has children from a previous relationship, do not assume they cannot make a claim against your estate.
This applies even though they are not your biological children.
Queensland law recognises certain stepchild relationships for family provision claims.
Whether a particular person can make a claim depends on their circumstances. The relevant legal requirements must also apply.
It is important to remember that eligibility to make a claim is not the same as an entitlement to an inheritance.
A court considers the circumstances of the estate and any competing claims. It then determines whether further provision should be made.
Why is this important for new relationships?
Entering a new relationship can change your estate planning considerations.
This is particularly relevant when you and your new partner have children from previous relationships.
You may want your assets to pass to your own children, your new partner, or a combination of family members.
However, simply stating your wishes in a Will does not necessarily prevent an eligible person from making a claim against your estate.
Careful estate planning can help identify potential claims. It can also help you consider strategies to minimise the risk and potential impact of a future dispute.
What factors does the Court consider?
The court considers several factors when deciding whether a challenge will succeed, including:
- The level of need of the challenger;
- The size of the estate;
- The nature of the relationship between the challenger and the deceased; and
- Other competing claims on the estate.
Other circumstances may also affect the outcome. These will depend on the particular estate and the nature of the claim.
What does this mean for your Will?
If you have entered a new relationship, it is important to review your Will and broader estate plan.
This can help ensure they reflect your current family circumstances and intentions.
This is particularly important if your new partner has children. It is also important if you have children from a previous relationship or significant assets.
A carefully structured estate plan can help ensure that your wishes are clearly documented. It can also take into account the possibility of competing claims against your estate.
If you are concerned that your new partner’s children could challenge your Will, consider obtaining legal advice about your circumstances.
Legal advice can help you understand the potential risks. It can also help you consider the estate planning strategies available to you.
Can you prevent a Will challenge?
There is no simple provision in a Will that can guarantee an eligible person will never make a claim against an estate.
However, you can put strategies in place to help minimise the effect of any challenge.
Understanding the potential for Will disputes when preparing your estate plan can help you consider these issues before they arise.
Frequently Asked Questions
Can my new partner’s children challenge my Will?
In certain circumstances, yes. A child of your spouse or de facto partner may fall within the relevant legal definition of a stepchild for a family provision claim.
However, eligibility to make a claim does not mean the claim will necessarily succeed.
Can my partner’s children inherit from me if they are not my biological children?
Whether your partner’s children inherit from your estate depends on your Will and the circumstances of your estate.
However, they may also be eligible to make a claim against your estate in certain circumstances.
Can I stop my new partner’s children from challenging my Will?
There is no simple provision in a Will that can guarantee an eligible person will never make a claim.
However, careful estate planning can help identify potential risks. It can also help you consider strategies to minimise the likelihood and impact of a dispute.
Does being a stepchild mean they will receive part of my estate?
No. Being eligible to make a claim does not mean that a person will automatically receive an inheritance.
The circumstances of the estate and the competing claims are relevant to any application.
Planning for the future
There are many misconceptions about who can challenge a Will. This is particularly true when new relationships and blended families are involved.
You can put strategies in place to help minimise the effect of any challenge.
A carefully structured estate plan can help ensure that only the people you intend to benefit do so. It can also take into account your family circumstances and the potential for competing claims.
If you are considering updating your Will after a new relationship or changes to your family circumstances, Wills and estate planning advice can help you understand the options available to you.