The definition of “stepchild” now includes the child of a deceased’s domestic partner for the purposes of section 90 of the Administration and Probate Act 1958 (Vic), a recent Supreme Court of Victoria case has held. In Bail v Scott-Mackenzie  VSC 563 the plaintiff (“Ms Bail”) successfully brought a claim under the will of her mother’s domestic partner (“the Deceased”), contending that she was an “eligible person” to make such a claim by virtue of being his “stepchild” within the meaning of the law. This was despite her mother and the Deceased never being married, and her mother predeceasing the Deceased 14 years earlier.
The case highlights the implications and risks of leaving a beneficiary out of a will who ought to have been provided for. This is regardless of whether that beneficiary has familial ties by virtue of marriage or a domestic relationship. The case also highlights the changing attitude of the law to the status of de facto relationships, and particularly, the children of these de facto partnerships where only one partner in the relationship is the child’s natural parent.
The Deceased was born on 10 February 1938. In 1960 he commenced a de facto relationship with Ms Holmes (Ms Bail’s mother). This relationship lasted for 40 years before Ms Holme’s death on 26 October 2001. The couple never married.
Following Ms Holme’s death, the Deceased commenced a new relationship with the defendant (Ms Rooke).
On 27 January 2007, the Deceased made his last will (“the Will”). In it the Deceased left his entire estate, with a net value of $959, 957.10, to Ms Rooke, despite allegedly making promises to Ms Bail that she would receive the deceased’s estate and be “looked after”.
The deceased died on 17 January 2016. He had never been married and never had any children.
Probate of the Will was granted to Ms Rooke.
Ms Bail brought an application under the Administration and Probate Act 1958 (Vic)(“the Act”) for provision under the Will. Ms Bail submitted that she was “not adequately provided for as the deceased’s stepchild”. In this context, Ms Bail argued that “stepchild” under the Act should be given a wide meaning to include the children of domestic partners (emphasis added).
Ms Rooke argued that Ms Bail had no standing to make such a claim as she was not an “eligible person” within the meaning of the Act. That is, Ms Bail was not the Deceased’s true stepdaughter as her mother and the Deceased were never married. In this way, Ms Rooke argued that relevant provision be construed narrowly. Failing this argument, Ms Rooke argued that Ms Bail was no longer a stepchild of the Deceased by virtue of the domestic relationship dissolving when Ms Bail’s mother died.
Was Ms Bail an “eligible person” for the purpose of the Act to make a claim under the Deceased’s estate? That is, could the child of the domestic partner of the Deceased be considered the Deceased’s stepchild within the meaning of the Act? If yes, did Ms Bail’s status as the Deceased’s stepchild cease when her natural parent died?
Ms Bail was successful in her application. His Honour held that “stepchild” includes the child of a domestic partner, as well as a child whose natural parent in a de facto relationship dies before (instead of separates from) the remaining “stepparent”.
The legislature supports a wider meaning of the word “stepchild” to include the child of the deceased’s domestic partner
Under section 90A of the Act, “an application for a family provision order may be made to the Court by, or on behalf of, an eligible person.” Section 90(f) of the Act provides that an “eligible person” can be defined to include a “stepchild” of the deceased.
Derham AJ held that by applying the process of statutory interpretation to the statute, stepchild in the context of the Act had adopted a wider meaning to include the child of a domestic partner.
- The Oxford Dictionary Meaning of “Stepchild” includes the Child of a Domestic Partner
In looking at the natural and ordinary meaning of the word “stepchild”, his Honour considered the 1993 New Short Oxford Dictionary. This text defined “stepdaughter” as “a daughter, by another marriage or relationship of one’s husband or wife or loosely the person with whom one lives as if married.”
From this dictionary definition, his Honour determined support does exist for a stepchild to be ordinarily defined as the daughter or son of a domestic partner.
This meaning could only be applied at law, however, if it did not violate the principles of Popple v Rowe  1 VR 651. Popple provides that a Court should not accept a wider meaning of words or terms in a statute if that word or term can properly be described as “popular, loose and flexible” and a “meaning which the legislature should not be taken to intend.”
- The Provisions, Purpose and Explanatory Memorandum Support the Wider Meaning of “Stepchild”
In determining whether the Legislature intended for a “stepchild” to include a child of a domestic partner, his Honour looked to the purpose and provisions of the Act. He also considered the Act’s Explanatory Memorandum.
In doing this, His Honour observed that section 90 of the Act also lists a “spouse or de facto partner” as an eligible person who can make a claim under a will of a deceased estate. His Honour held that this legislative drafting – that both a spouse and de facto partner were viewed equally in the eyes of the law – “indicate[d] an intention … to embrace a more modern meaning of the word stepchild as including a child of a person who is the deceased’s unmarried domestic partner.” This supported the purpose of the Act, which is to provide relief to applicants who should have been appointed beneficiaries under a will.
His Honour also noted that the “Explanatory Memorandum aids in the interpretation”. The Explanatory Memeorandum explains that the (then) new inclusion of the term “stepchild”, as opposed to only a “child”, as an eligible person under the Act pointed to an overall expansion of the meaning of who can benefit under a will. For this reason, Ms Bail’s request for a wide construing of the term stepchild should be included.
Thus, the meaning of stepchild as including the children of de facto partners, was not “popular or loose” but one which the parliament intended.
Did the term “stepchild” persist after Ms Holmes’s Death
His Honour had to consider whether Ms Bail’s status as the Deceased’s stepchild finished after her mother’s death (and consequential dissolution of the de facto relationship). That is, to be able to claim under the Deceased’s Will, did Ms Bail’s mother still have to be alive and in a de facto relationship at the time of the Deceased’s death?
In Queensland, s 40A(3) of the Succession Act 1981 (Qld) provides that a person’s status as a stepchild does not end merely due to the death of the stepchild’s parent. With no similar provision in the Victorian legislation, His Honour considered this legislation as well as relevant case law, applying Deane J’s conclusion in Re Cook that,
“[I]f the marriage is undissolved at the time of the death of the natural parent, the relationship of affinity between stepparent and stepchild will continue”.
Thus, because the relationship between Ms Bail’s natural parent and stepparent did not dissolve by means of breakdown, but rather due to the death of her mother, Ms Bail was considered a stepchild within the meaning of the Act.
Bail v Scott-Mackenzie  VSC 563 demonstrates the law’s changing perspective toward de facto relationships in equalling the status of such domestic relationships to the status of marriage. Consequently, the children of such relationships are now gaining greater standing, here, being recognised as the “stepchildren” of the domestic partners of their natural parents, even when that natural parent never marries that partner, or predeceases that partner by years.