I'm a stepchild, can I make a family provision claim?

Published 13 Oct 2015

Author: David Cossalter

In a time when divorce and separation are unfortunately common, step families are a normal part of Australian society.

According to the Australian Institute of Family Studies, the number of step families grown steadily since 1991 and is a more widely accepted household structure.

An example of a step family would be a mother and her two children from a previous relationship marrying a father with two children of his former relationship. In many cases, these two parties together form a loving family and everyone treats each other as they were blood relatives.

However, if one of the parents passes away, any stepchildren could be omitted from the estate. There have been many cases in the recent past of stepparents only leaving the contents of their will to their blood-related children. In the above example, this could mean that 50 per cent of the children are left with a financial future and the other half aren't allocated anything.

So, what are a stepchild's legal rights if he or she is caught in this situation?

Family Provisions Claim

Under NSW legislation, stepchildren are not eligible to challenge wills. As they are not direct blood relatives to the deceased, stepchildren can't apply to the court for provision and will have to take a slightly different legal path to access the estate of a deceased parent.

However, it is important to remember that this party can still make a Family Provisions Claim if they meet certain criteria.

What criteria needs to be met?

This is where it will be helpful to engage the services of a lawyer. With expertise in family estate cases, a lawyer will be able to assess your situation to ensure you are eligible to contest the will.

Here are the two clauses that stepchildren will need to meet:

1) Dependence: If the stepchild was ever wholly or partly dependent on the deceased person, then this can mean they are eligible to challenge the will. This can be easy to prove if the families blended when the step-children were young.

2) Living arrangements: Again, if a stepchild had lived in the same household as the deceased at any stage of life, then it is possible to make a Family Provisions Claim. Sufficient evidence would be required to prove this fact.

Of course, stepchildren (and all other family members) only have 12 months to file a contested will case in NSW. As such, it is vital to work along an experienced lawyer who can ensure you meet every obligation along the journey.

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