When Step Children Step Up: James v Rost and the Evolution of Family Provision Claims

Australia has long recognised that spouses and children should receive property from a deceased estate when a will doesn't adequately provide for them. Family provision laws, or testator's family maintenance, originated in New Zealand in the late 19th century and were gradually adopted by Australian states and territories from 1906. A recent Victorian Supreme Court decision, James v Rost; Lanagan v Rost [2022] VSC 98, demonstrates how these laws continue to evolve, particularly in complex blended family situations.

The Family Drama Behind the Law

The case involved Vera Amerika-Rost, who died at age 98, leaving her $920,000 Melbourne property to her daughter Michaela and grandson Saery, completely excluding her two adult stepchildren, Bernard and Marianne. The stepchildren's father, Jack, had lived with Vera for over 40 years until his death in 2006, contributing significantly to the household and property before transferring his half-share to Vera.

Bernard and Marianne, now in their 70s with modest retirement incomes, claimed they deserved provision from the estate. Michaela, living in subsidised housing with minimal assets, argued that selling the property to fund their claims would leave her and her son facing "ruinous poverty."

The Court's Findings: Half the Estate, Half the Obligation

Justice Daly found that Vera owed the stepchildren a moral duty to provide for them, applying the established "wise and just testator" test. The criterion asks what a testator ought to have done in all circumstances, treating the testator as "a wise and just, rather than a fond and foolish" parent.

 Three key factors drove this decision:

1. Source of wealth: Half the estate's value derived from Jack's contribution to the property

2. Forbearance: The stepchildren had stepped aside after their father's death, allowing Vera to inherit his share without challenge

3. Financial need: Both stepchildren, while not destitute, had limited retirement income and no capacity to substantially improve their financial position.

The court awarded Bernard $65,000 and Marianne $105,000. Significantly less than their initial claims of $150,000 each, reflecting the competing needs of Michaela and Saery.

 Critical Lessons for Legal Advisers

1. Document Contributions in Blended Families:  When advising clients in second marriages, ensure property contributions from both spouses are properly documented. Vera's decision to make Jack a joint proprietor and later give him a half-share as tenant in common became crucial evidence of his contribution's value.

2. Estate Planning Evolution Tells a Story: The court scrutinised Vera's succession of wills, noting she consistently provided for the stepchildren until shortly after Jack's death. This pattern suggested acknowledgment of moral duty, making her later exclusion legally vulnerable.

3. Evidence Gaps Can Be Fatal Michaela's claims about losing subsidised housing if she inherited were undermined by a lack of documentary evidence about the housing authority's policies. In contested estates, assumptions without proof can derail otherwise strong arguments.

4. Financial Need is Relative, Not Absolute The court clarified that claimants need not be destitute to succeed. The test asks whether adequate provision has been made for "proper maintenance, education and advancement in life" rather than mere subsistence.

5. Competing Claims Require Careful Balancing:  The court acknowledged Michaela's genuine housing insecurity while recognising the stepchildren's legitimate expectations. Advisers should help clients understand that competing family needs will influence both the likelihood of success and quantum of any award.

The Bigger Picture

This decision reflects contemporary community standards that reject outdated notions of stepchildren having inferior claims to natural children. It also demonstrates the courts' willingness to look beyond formal legal arrangements to examine the substance of family relationships and contributions.

For estate planners, the case reinforces that testamentary freedom remains bounded by moral obligations to family members, particularly in blended families where assets have mixed sources. For potential claimants, it shows that strategic patience (forbearing from claims against a deceased parent's estate) can be legally recognised and rewarded.

The intersection of property law, family dynamics, and evolving social values ensures family provision claims will continue challenging practitioners and courts alike. Success depends not just on legal technicalities, but on presenting a compelling narrative about fairness, family relationships, and community expectations of responsible testators.