Certain people can make claims on estates including, in some cases, stepchildren. However, this does not always mean a stepchild will be successful in that claim.
What is a will, and is it final?
A will is a legal document which outlines your wishes for when you pass away. It includes information like who you want to receive your assets, arrangements for your funeral, who you would want to be legal guardian for any children under 18, and who you would like to be your executor.
Having a will allows you to outline how you would like your estate to be handled. It also gives the opportunity for you to explain your decisions. A person may leave their assets to whoever they wish, including family, friends and charities. You may think that a Will should not be able to be contested, however, the law recognises that some people, such as those who relied on the deceased person, can be unfairly left out of a Will.
One of the main ways to challenge a Will is by making what is known as a family provision claim. This is done by an eligible person arguing that the Will did not make adequate provision for their proper maintenance, education or advancement in life. (see e.g. Succession Act 2006 (NSW) section 59 and Family Provision Act 1969 (ACT) section 8)
Who can make a family provision claim?
There are certain categories of people who can make a family provision claim over someone’s estate. The list of eligible applicants differs slightly across the States and Territories.
In New South Wales the list includes spouses, de facto partners, children, a former spouse (in some circumstances), and someone dependent on the deceased. This State also considers someone living in a close personal relationship with the deceased at the time of their death, which can include dependent stepchildren and sometimes grandchildren.
In assessing a claim, the Court further considers a range of factors including the nature of the relationship, the value of the estate, and the needs of the applicant.
A recent case: Brown v Brown [2022] NSWSC 1393
In Brown v Brown, the Court considered a claim on a deceased’s Will by an adult stepson. The stepson lived with the deceased during his teenage years between 1973 and 1981, after the deceased married the stepson’s mother. However, the deceased and the mother separated in 1984. In the deceased’s Will, he appointed his only biological child as executor and gave the whole of the estate to him.
For the stepson to make a claim on the estate, he must be considered an eligible person. In Brown v Brown the Court considered his eligibility, as either a ‘child’ or as dependant on the deceased. The Court in considering the definition of ‘child’ provided by the Succession Act 2006 (NSW) found that it could not be interpreted to include stepchildren, particularly where the birth parent is no longer married to the deceased. The Court referred to case law, including Trembath v Trembath [2017] VSC 369 which highlights that the divorce of the birth parent and stepparent ends the step-relationship.
Though the Court in Brown v Brown found the stepson eligible to make a claim for other reasons, namely due to the nature of the relationship with the deceased, the Court ultimately dismissed the case as it did not find that the stepson was not adequately provided for in the deceased’s will, especially in considering the circumstances of the competing claim of the biological son.
If you have any questions or concerns please contact our Private Wealth Director, Ashleigh Blewitt, on 02 6188 3600