Can A Stepchild Contest A Will? (NSW)

In New South Wales, certain eligible persons are entitled to dispute a deceased’s will through a Family Provision Claim. There is sometimes confusion over which family members are actually entitled to contest the provisions of a will. For instance, under the Succession Act 2006, a stepchild is not entitled to apply to the Supreme Court for provision as a legally recognised child. That is not to say that there is no avenue for a stepchild to make a family provision claim, but they will have to provide evidence of eligibility, whereas a biological or adopted child is automatically eligible to apply. This article examines the process whereby a stepchild can contest a will in NSW.

What Is A Family Provision Claim?

When an eligible person feels that they have been unfairly left out of a will or received insufficient provision in the will, they can make a Family Provision Claim. This claim is lodged with the NSW Supreme Court and assessed against statutory criteria. A stepchild’s claim will be weighed against the strength of any other claim and the rights of the existing beneficiaries.

Definition Of Stepchild

With the prevalence of separation and divorce in Australia, it is increasingly common for there to be blended families made up of a couple and children from previous relationships. In this circumstance, the unrelated children are termed ‘stepchildren’. A testator’s stepchild is the offspring of the testator’s current spouse, who is not related to the testator biologically or through adoption. Because the stepchild is not kin to the testator, they do not have the same statutory right to contest a will as a biological or legally adopted child.

Criteria For A Stepchild Contesting A Will

In order for a stepchild to have the right to contest a will, they need to meet two specific clauses. The stepchild must be able to prove that they were partly or wholly dependent on the deceased and that they lived at some point in time in the same household of the deceased.

Dependence

Under succession law, dependence denotes a relationship where someone relies on someone for some or all of their needs. This dependence can take the form of emotional, material or financial need, but an emotional dependence without financial or material provision is insufficient for eligibility.

The required level of dependence is not specified, although common law suggests that it needs to be greater than minimal dependence. For example, if the testator sporadically made gifts to an independent adult stepchild, that would probably not qualify as dependency. In contrast, if a minor stepchild’s own parent did not earn an income, they may be entirely financially dependent on their stepparent. Even an adult stepchild who is living in their stepparent’s house could claim a relationship of dependency, especially if they paid minimal or no rent. Each case will have its own unique characteristics and the Court will examine the relationship between the deceased and the claimant in totality.

The other minimum requirement for establishing a claim is that the stepchild lived in the same household as the deceased at some point in the past. This means that an adult stepchild who has subsequently moved out of the family home will still meet the living arrangement requirement. There are no statutory rules relating to how long this cohabitation has to have lasted, however, the longer the household residency lasted, the greater the claim against the estate.

Additional Factors

After satisfying the eligibility criteria, the stepchild must also evidence additional factors in their application. These factors may include:

• The nature of the relationship between the deceased and the stepchild
• The financial resources and future needs of the stepchild
• Any contribution that the stepchild made to the deceased’s estate
• Any contribution that the testator made to the stepchild before the testator’s death

A stepchild should be aware that even if they are eligible to contest a will, they are not guaranteed a provision from the estate. The court may find that competing claims hold priority over any claim that the stepchild has to the deceased estate.

Time Limits

Even if the stepchild meets all the necessary conditions, they can only contest a will in the year following the death of the testator. The claimant can attempt to make an application after that time by pleading justification for the delay, but there is no guarantee that the court will hear the claim. Due to the limited time frames, it is essential that a prospective claimant contact a solicitor as soon as possible to begin the application process.

Our contested wills team has extensive experience with disputing the provisions of wills and can help guide you through any aspect of the process, or any other area of probate or testamentary law. Please call the offices of Armstrong Legal on 1300 038 223 to talk about your particular circumstances, or contact us online to arrange an appointment.