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RIGHTS OF A STEPCHILD TO CONTEST A WILL

  • 1
  • July 01, 2016
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The Inheritance (Family and Dependants Provision) Amendment Act 2011 (WA) was introduced in 2013 to allow a stepchild of a deceased person to make an application for a provision out of the deceased’s estate in certain circumstances.

 

A stepchild is defined as being a person who was alive on the date on which the deceased married or entered into a de facto relationship with the natural parent of the stepchild but who is not a natural child of the deceased.

 

Under the Family Provision Act 1972 (WA) there are two circumstances where a stepchild is eligible to make an application for a provision out of the deceased stepparent’s estate:

  1. where the stepchild was maintained or entitled to be maintained wholly or partly by the deceased stepparent; or
  2. where the deceased stepparent received or was entitled to receive property from the estate of the stepchild’s natural parent and the value of that property at the time of death of the stepchild’s natural parent was greater than the prescribed amount (currently $460,000).

Assets that a stepparent acquires by survivorship from the natural parent of the stepchild do not count towards the prescribed amount.

 

A stepchild’s application for a provision out of the deceased stepparent’s estate will include a consideration of the same factors as any other family provision claim, such as:

  • the applicant’s financial position;
  • the size and nature of the deceased’s estate; and
  • the totality of the relationship between the applicant and the deceased and the beneficiaries and the deceased.

The decided cases on stepchildren claims suggest that the court will look more closely at:

  • the needs of the stepchild;
  • the quality of the relationship between stepchild and stepparent; and
  • the extent to which the stepparent’s estate can be said to have been derived from the stepchild’s natural parent.

A stepchild will need to demonstrate a greater need in circumstances where:

  • the relationship between the stepchild and stepparent is distant or has suffered a period of estrangement; and
  • the extent to which the stepparent’s estate reflects the stepparent’s own contributions and efforts as opposed to the efforts and contributions of the stepchild’s natural parent.

Conversely, a stepchild may not need to demonstrate a great need where:

  • the relationship between the stepchild and stepparent is close and akin to parent and child; and
  • it can be shown that the stepparent’s estate is sourced substantially from the stepchild’s natural parent.

The law does not presume that the relationship between stepchild and stepparent is more remote than the relationship between parent and child.  However, the court’s assessment of the relationship between the applicant stepchild and deceased stepparent will have a bearing on its decision.

 

For more information of if you have any questions in relation to wills and estate planning, contact Nicholas de Kerloy at nicholas@mdk.com.au

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