A few weeks ago we wrote about the Victorian Court of Appeal recognising the rights of de facto children in the case of Scott-Mackenzie v Bail. The case concerned an applicant whose mother was in a domestic relationship with the deceased for 40 years until the mother’s death years prior to the deceased’s death. The applicant bought a claim under Part IV of the Administration and Probate Act 1958 (Vic) in a (bold and successful) attempt to widen the Courts interpretation of “Step Child” to including one where the parties were not married.
This case was handed down in May this year.
Queensland has now followed by recently introducing major changes to the Succession Act 1981 (Qld).
Two major changes include:
- A new section 15B being inserted which sets out that the end of a de facto relationship revokes any gifts to the de facto partner and the appointment of the de facto partner as executor – this in effect treats de facto relationships the same as marriages.
- The expansion of the definitions of “Step Child” contained in section 40A for the purposes of making a family provision claim. A step child/step parent relationship is deemed to have ended upon the ending of the de facto relationship and not merely because the step child’s parent died before the deceased person (if the de facto relationship subsisted at the time the parent died) or if the deceased person remarried or entered into another relationship or de facto relationship after the death of the stepchild parent.
The “movement” towards highlighting the changing familial values in Australia all started with the Western Australian case of Blyth v Wilken  WASC 486 which was only handed down very recently in 2015 and at the time, this was truly a landmark decision of its kind Will in Australia.
In the case of Blyth v Wilken, the deceased left a Will dated 2 December 2003 giving the bulk of his estate to “my de facto wife Katherine Mary Murray”.
The deceased and Ms Murray ended their relationship in 2011 and the deceased subsequently died in 2014 without changing his Will.
The Court decided that Ms Murray did not receive the gift under the Will because her relationship with the deceased had ended. The Court recognised that the deceased had only intended Ms Murray to receive the gift if she continued to be his de facto spouse – and not in any other instance. In other words, the Court held de facto relationships on the same platform as marriages when it came to the interpretation of a Will.
At the time the judgement in Blyth v Wilken was handed down, there was a lot of scepticism by commentators that this judgement would be appealed or otherwise challenged in the future.
With Victoria and Queensland following the trend towards recognising these relationships, it may be safe to say at this stage that other Australian jurisdictions are likely to follow down the path of recognising de facto and step children’s rights.