‘Am I entitled to money from my stepdad after he dies?’

A “territorial” situation is set to unfold after a stepdad promised one thing to his stepdaughter – and his family disagree.

‘Am I entitled to money from my stepdad after he dies?’

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn advise about rights with family wills.

Question: My stepdad is for all intents and purposes my dad. I’m 33 and he’s been my father figure since I was five. He and my mum divorced when I was 17, but he stayed active in my life. We talk on the phone a couple of times a week and I try to visit him once a year (I live on the other side of the country now).

He recently built a house and said it will be mine when he’s gone, but he doesn’t have an official will. His family has always treated me as blood so legal status has never mattered, until last year when his mother died and suddenly everyone started to behave in a very territorial way. Obviously, the best thing to do is to talk to him about making a legal will. But do I have any legal rights if he died without one? – Claudia, Vic

Answer: Disputes over property and assets when someone dies are often very messy, not just because of the potential legal issues involved but because emotions are high.

Where someone dies without a will, things are even more complex. Adding a blended family into that mix creates further potential complications.

You are right, the best way for your stepdad to ensure his wishes are upheld would be to write a will, noting however that even with a valid will, disputes can still arise.

Someone’s rights when a loved one dies without a will and when someone wants to contest a will differ based on whether you are a biological child or a stepchild.

Parenting responsibility

It sounds like your stepdad never took legal parental responsibility over you in terms of adoption or parenting orders.

Under the law you would therefore be considered a stepchild and the fact that you have what seems to be a deeply meaningful relationship with your stepdad is not conclusive of being entitled to anything from his estate.

Having a meaningful relationship with a step-parent is not conclusive of being entitled to anything from their estate. Picture: iStock

Contesting a will

If your stepdad was to write a will, and you believed that on his passing the will did not adequately provide for you, you can apply to the court to challenge the will (this is called a family provision application).

Given your age – and assuming you are not a person with disability – the court, in determining if you should secure anything from your stepdad’s estate, will consider the degree to which you are not capable, by reasonable means, of providing for yourself.

Dying intestate

If your stepdad were to die intestate – that is, without a will – you do not have the same rights as a biological or adopted child.

In Victoria where you reside, an estate is divided up on the basis of the rules of intestacy set out in the Administration and Probate Act 1958.

Under these rules, the next of kin will usually receive the estate. This is usually the spouse or partner (if he had one), followed by his biological or adopted children or grandchildren.

There are some additional complex rules that outline distributions based on the value of the estate and if your stepdad had multiple partners during his life.

You can apply to the court to challenge a will if you believe it did not adequately provide for you. Picture: iStock

The important rule for you to be aware of is that stepchildren are not entitled to anything under the intestacy provisions.

If the estate is distributed using the intestacy rules and you are excluded, you would need to contest the distribution by making a family provision application, in the same way you would contest a will.

Again, you would need to show that you were unable to provide for yourself.

Time limit

You would only have six months from the grant of letters of administration to make the application.

We recommend having an honest conversation with your stepdad about your concerns and encouraging him to seek legal advice to write a will that properly reflects his wishes and reduces the risk of any conflict and legal costs when he passes.

If you succeed in getting your stepdad to make a will, once that is completed, you should also encourage him to discuss the will’s contents with his family, so there are no surprises for them down the track.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

If you have a legal question you would like Alison and Jillian to answer, please email [e-mail]. Get more from Alison and Jillian on their Facebook page

Originally published as ‘Am I entitled to money from my stepdad after he dies?’