The legalities of family provision claims by adult step-children in NSW

Get in touch: 1800 770 780

How can we help?

The State of things

The death of a friend or relative is always difficult and can be even more traumatic in cases where there was some expectation to be provided for in the deceased’s Will, only to find that such is not the case.

 These matters can often be quite complicated. Added to variations in personal circumstances, are the variations in legislation and interpretation from State to State. In this society of ours where family members often migrate from one state to another, things can get a little confused. Sound legal advice is essential.

 That said, let’s look closer at the issue to try and drill down for some clarity.


Challenging a Will

In general terms, there is a reasonably established list of persons able to challenge or contest a Will. These are:

  • A spouse or de facto of the person at time of death.
  • Children of the relationship, either by birth or adoption.
  • Former spouses.
  • Persons wholly or partly dependent, and members of the same household.
  • A person with whom the deceased had a close personal relationship.
  • Grandchildren.
  • Stepchildren.

Other than perhaps the first category on the list, these are not necessarily in any priority order. Further, it needs to be stressed that beyond these basic descriptions, there is a great deal of detail, and a good many requirements.

For example, what is a close personal relationship, and what does being a member of the household look like in practice across a range of family and other relationships? What further restrictions and requirements are there for grandchildren, in order to make a claim? These issues need to be looked at separately.

 For this article, the last category on the list—stepchildren—is the focus of our attention.


The ‘Brady Bunch’

 Back in the days of The Brady Bunch, a sitcom showing what was at the time, a quite radical family set-up, such circumstances were seen as relatively convoluted. These days, that TV family might well be seen as reasonably straightforward.

 Stepchildren do have rights to contest a Will, indeed, any from the above list may challenge the validity of a Will in total for such reasons as:

  • The Will was made under duress.
  • The deceased lacked the testamentary capacity to make sound decisions.

However, assuming that the Will is valid, a stepchild may make a Family Provision Claim where they believe that they have not been appropriately provided for.

 A stepchild generally must prove that they were:

  • a member of the deceased’s household, and
  • wholly or partly dependent upon the deceased.

 These two things do not necessarily need to have occurred at the same time, though if they did, it forms a more convincing argument.

 Courts will consider a great deal of information when dealing with these matters, including, but not limited to:

  • The size of the estate.
  • Provisions to spouse, de facto, natural and adopted children.
  • Provisions to grandchildren.
  • The nature of the living arrangements and/or dependency of the stepchild.
  • The financial needs of the stepchild.
  • Any disability that may affect the needs of the stepchild.

 These matters can be extremely complex, and the Court will give a great deal of thought to deciding upon a fair and equitable outcome.

 The best outcome will begin with a thoroughly investigated and well-presented case.

Estate Law allows us to provide clarity. It will be easier with sound legal advice from the experts. Owen Hodge Lawyers. We are here to help. 

Just ask us a question

We are always ready to help you.