Family Provision Claims by Stepchildren (NT)
A family provision claim is made by a close family member of a deceased person when they feel that adequate provision has not been made for them in the will. Children and spouses and partners may make family provision claims in the NT. A stepchild is also entitled to make a family provision claim in the NT if they have been left without adequate and proper provision. This article deals with family provision claims by stepchildren in the NT.
Eligibility and family provision claims
A stepchild is entitled to claim provision from the estate of a stepparent under Section 7(1)(d) of the Family Provision Act 1970.
Section 19A of the Interpretation Act 1978 defines a person’s stepchild as follows.
- If the person is married – a child of the person’s spouse but not a child of the person; and
- If the person is in a de facto relationship – a child of the person’s de facto partner that much of the person.
The definition of ‘de facto partner’ under NT law only requires two persons live together as a couple on a genuine domestic basis. Unlike other jurisdictions, there is no requirement for the couple to have been in a relationship for a minimum length of time. Therefore, to qualify as a stepchild, the person’s parent and stepparent do not have to have been in a relationship for a particular period of time.
Termination of parents’ relationship
A child is no longer the stepchild of a person if the child’s parent divorces the person. Similarly, a de facto stepchild is no longer a de facto stepchild if the de facto relationship ends. If the relationship of a child’s parent to a person ends in this manner, then the child is no longer a stepchild of the person at their death and is not entitled to provision from the person’s estate. Therefore, a stepchild is not eligible to make a family provision claim if their parent was no longer in a relationship with the deceased when they died.
NT law has not established whether the stepchild/stepparent relationship terminates on the death of the stepchild’s parent. Traditionally, the relationship between stepchild and stepparent ended upon the death of the child’s parent, resulting in no stepchild relationship being in existence. However, under a similar Victorian provision, courts have recognised the continued existence of a stepchild/stepparent relationship following the death of the child’s parent. However, a short de facto relationship between the parent of the child and the deceased may result in a lower level of provision.
Requirement of dependency
Unlike other jurisdictions which allow stepchildren to claim provision from a deceased estate, in the NT this is limited to stepchildren who were dependant on the deceased immediately prior to their death.
The requirement for dependency indicates that there must be some level of provision already in existence between the stepchild and the stepparent immediately prior to the stepparent’s death. Dependency need not be financial, but it will be more difficult to establish non-financial dependency.
The NT dependency requirement does not limit the amount of provision to the level of the stepchild’s dependency on the deceased. Once a stepchild establishes that they meet the dependency criterion, it is simply a matter of determining what amount of provision they should receive.
How are family provision claims assessed?
A family provision claim in the Northern Territory is decided based on a two-stage test. The two stages of the test are:
- Whether the deceased had a moral obligation to provide for the proper maintenance, education and advancement in life of the applicant stepchild;
- What is the amount of provision for the applicant child that is sufficient to provide for the applicant stepchild’s proper maintenance, education and advancement in life (in all the circumstances of the case), and if the deceased’s will or intestacy meets that obligation.
Whether the stepchild meets the first criterion will ultimately depend upon what the relationship was between the stepparent and applicant stepchild. Importantly, if the assets of the stepchild’s parent did not pass to the stepparent upon the arent’s death, it is far more difficult to establish that the stepparent should have left provision to the stepchild. However, there may be many other factors that may result in provision to the stepchild, such as the length of the relationship between the stepparent and stepchild and contributions made to their welfare.
If the court decides that making an award in response to the family provision claim is appropriate, it will then consider what level of provision is appropriate for the stepchild’s proper maintenance, education and advancement in life.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.