Stepson’s family provision claim contingent upon eligibility

Published 23 Feb 2018

A man who pursued a family provision claim against his stepmother’s estate has launched an appeal after his initial case was rejected on grounds of ineligibility.

Under the Succession Act 2006, stepchildren aren’t automatically entitled to pursue provision from a stepparent’s estate. However, Section 57 (1)(e) of the Act allows claims from people who were, at any particular time, wholly or partly dependent on the deceased.

The stepson argued that he had lived in the same household with his stepmother and father for several years as an adult, at which time he relied upon her for domestic services and the supply of food.

Why was the first claim rejected?

In the original 2017 trial, Justice Paul Brereton ruled the man was not an eligible person because he had not established that he was dependent on the deceased.

The judge said the domestic assistance provided was trivial and the plaintiff was largely self-sufficient while living in his stepmother’s household. Nevertheless, Justice Brereton said the man would be entitled to $300,000 from his stepmother’s estate if he could later prove eligibility.

The man launched an appeal against the ruling, arguing that the trial judge’s definition of ‘wholly or partly dependent’ was narrower than provided in the Act. Given this, he said his circumstances met the statutory benchmark of dependence, entitling him to pursue a claim.

The stepmother’s nephew and niece, who were the only beneficiaries of their aunt’s will, filed a cross-claim stating that the original trial judge erred in claiming the plaintiff should receive $300,000 if he was an eligible claimant.

How did the family provision claim appeal play out?

The appellate judges decided that Justice Brereton’s definition of dependence was stricter than the Act intended.

In particular, the judge mistakenly ruled the plaintiff ineligible because his stepmother was not a co-owner of the property in which they had both been living.

Despite this, the appellate judges did not feel the original outcome was wrong. They claimed the stepson had not adequately shown that he was dependent on his stepmother to an extent that would make him an eligible person under the Act. Unfortunately for the plaintiff, this meant his claim was dismissed for a second time and he will not receive provision from his stepmother’s estate.

This case highlights the importance of enlisting the services of no-win, no-fee lawyers for will disputes. Firms such as Gerard Malouf & Partners Will Dispute Lawyers can cover the upfront costs of pursuing a claim, which means clients are not required to pay unless they reach a positive settlement. Contact us today to learn more.

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