Christine Vrahas, Estate Litigation Solicitor at Owen Hodge Lawyers

 

Did you know that a stepchild actually can make a claim against your estate for further provision?

That is what happened in the case of COOPER –V- ATKIN [2020] NSWSC 828. The deceased step parent made no provision for the step child in his Will.

The  step child made a claim for provision out of her step parent’s estate on the basis that she was a person who was, at any particular time, wholly or partly dependent on her deceased step parent,  and who was, at that particular time, or at any other time, a member of the household of which the step parent was a member.

Further to fitting within the definition of an eligible person, the Judge was satisfied that there were factors which warranted the step child’s application for an order for provision in that the deceased step parent  inherited the stepchild’s mother’s interest in the property as joint tenant of the home in which the step parent and the step child’s mother had lived. In addition to this, the step child was named as a beneficiary in an earlier Will of the step parent which showed that at a particular point in time, the deceased step parent regarded the step child as an object of his testamentary bounty. 

Eligibility having been established, the next question for the Court to determine is whether adequate provision for the proper maintenance, education, or advancement in life of the stepchild had not been made by the deceased step parent’s Will. It was clear that the step parent made no provision for the step child in his last Will. However, on this point, the Judge noted that this fact does not mean that the step child has satisfied the notion that she has been left without adequate provision even though no, or little, provision was made for the step child in the step parents Will.

In this case, at the time of the hearing, the size of the estate was valued at just over $90,000. The Judge noted that claims for family provision orders present particular difficulties  where the estate is small and where there are other competing claims  on the estate of the deceased.

On the evidence, the Judge found that this was not a case where there was a close relationship, that is one which might be properly described as parent and child, or where the step child was brought up as a permanent member of the deceased step parents family, or she was ever a full-time member, as a child of the deceased’s family. The evidence did not suggest that the step child was supported by the deceased step parent, to any significant extent, educationally or even emotionally. All evidence suggested that the relationship between the step child and the step parent  was superficial and tenuous. The Judge also noted that the size of the estate being a consideration in determining the application for provision.

The Judge found that the step child had not satisfied the Court that adequate provision for the step child’s proper maintenance, education or advancement in life had not been made by the Will of the deceased step parent and dismissed the step child’s claim. 

If you are part of a blended family and need assistance with your Estate Planning documents, don’t hesitate to contact Christine Vrahas from Owen Hodge Lawyers on 1800 770 780 or by emailing ohl@owenhodge.com.au