Step-Childrens Rights – What are they entitled too and who looks after them?

Published 01 Apr 2012

The rights of step-children in a family provision claim, vary in each State under the different pieces of legislation governing such claims. Despite these variations, the case law that has emerged from step-children making family provision claims in Australia, has resulted in a common understanding of what step-children are entitled to and who has a moral obligation to look after their interests!

The most common situation in which step-children question their entitlement to a share of their step-parents Estate, arises when the step-parents assets have been derived from the funds or resources of the step-child’s natural parent. For example, in the Victorian case of McKenzie v Topp [2004] VSC 90 the step-son made a family provision claim against his step-mother’s Estate. In her Will his step-mother had left her Estate to her nephew. The Court granted the application on the basis that the amount of money left by the stepson’s natural father to his step-mother was a relevant consideration in determining whether the step-mother had a responsibility to provide for her step-son in her Will.

In the Queensland case of Freeman v Jaques [2005] QSC 200 the Court was required to consider an application for a family provision order made by the deceased’s step-children. In this instance there was no relationship between the deceased and the step-children and the Court found that the step-children were the deceased’s step-children in name only. Despite this lack of relationship the Court held that the deceased, who had left her entire Estate to a friend, should have considered the plight of her step-children who have real need of support where the deceased had benefited financially from their father. The Court then addressed the respective needs of the step-children and made orders for two of the step-children to receive lump sum payments of $100,000 each from the deceased’s Estate.

It appears from the case law that, where a person’s natural parent leaves benefits under their Will to their step-parent, that step-parent may have a moral obligation to consider the needs of their step-children when making their Will.

The case law also suggests that even if you have received a benefit under the Will of your natural parent, this will not automatically preclude you from making a family provision claim on your step-parents Estate.

If you are step-child then, under the various family provision legislation in each State, you have the right to make a family provision claim on your step-parents estate. The success of your claim will depend on the individual circumstances of your case. As you can imagine every family is different which makes it difficult to make assumptions when it comes to family provision claims. The best way to find out about your prospects of success is to talk to a legal specialist in this area.

Contact GMP Contesting a Will Lawyers to book a free first consultation. At the first consultation we will discuss with you in a professional friendly manner the details of your situation and advise you if and how you should proceed.

For free over-the-phone advice, or to take advantage of our free face-to-face consultation, call our expert lawyers today at Gerard Malouf & Partners on our Free Call Number 1800 004 878

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