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Can A Stepchild Contest A Will? (WA)

The Inheritance (Family and Dependents Provision) Amendment Act 2011 introduced limited provision for a stepchild in Western Australia to dispute the provisions of a stepparent’s will. Under this legislative amendment, a stepchild can only contest a will under certain conditions. Specifically, a stepchild is eligible if they were dependent on the testator financially, or if the testator inherited significantly from the natural parent of the stepchild. This article explains the restricted circumstances that allow a stepchild to contest a will in WA.

What Is A Family Provision Claim?

When someone passes away, they either die intestate, or they leave behind a will that distributes the assets of their estate to chosen beneficiaries. Most people assume that if there is a will, this is determinative of the distribution of the estate. The reality is that it is not uncommon for people to disagree with the provisions of a will. When a resident of WA or someone who owns property within the jurisdiction passes away leaving a will, certain people are entitled to petition the Supreme Court for a reassessment of the distribution in a will. If someone feels that they were entitled to a greater level of provision in a will, they can make a Family Provision Claim against the deceased estate for a more appropriate share.

Who Can Contest A Will In WA?

The Family Provision Act 1972 stipulates that only a select list of people can contest a will in WA. This list includes:

  • The de facto partner or marital spouse of the deceased;
  • A former partner or spouse who was either entitled to or already receiving, maintenance from the deceased;
  • A child of the deceased;
  • A stepchild of the deceased who was dependent on the deceased or if the deceased was a beneficiary of the natural parent’s deceased estate in an amount that exceeds the prescribed amount;
  • A grandchild of the deceased who was dependent on the deceased. Or a grandchild (living or born within ten months of the date of death) whose parent would have been entitled to claim against the estate if they had not predeceased the testator;
  • A parent of the deceased (but only if the relationship was acknowledged by the deceased);
  • Anyone receiving or entitled to maintenance from the testator immediately before the testator’s death.

Definition Of A Stepchild In Estate Law

Due to the increase of divorce cases in Australia and the growing number of blended families, there has been a concomitant rise in the number of step relationships. A stepchild of a deceased is defined under estate law in WA as a person who is not biologically related to the deceased, and who was born before the deceased entered into a de facto relationship or marriage with the stepchild’s natural parent.

Can A Stepchild Contest A Will In WA?

A stepchild is not included in the “child” category under WA estate law, but they have their own category of conditional eligibility for the purpose of making a claim against a deceased estate.

A stepchild is able to make an application for a Family Provision Order under a few circumstances. A stepchild can contest a will if they were entitled to or already receiving some form of maintenance from the testator. A stepchild is also eligible if the child’s natural parent predeceased the stepparent, and the deceased inherited from their partner’s estate in a sum greater than the prescribed amount of $460,000. It must be noted that this prescribed amount does not include any assets acquired through the rules of survivorship, such as property owned in joint tenancy.

Other Factors

The court will assess a stepchild’s Family Provision Claim against a range of criteria, such as the claimant’s financial position and the total value of the deceased estate. The assessment will also focus on the nature of the relationship between the testator and the claimant, in comparison with the strength of relationships between the testator and other existing beneficiaries. The law in WA does not assume that a stepchild and stepparent relationship is less significant than the relationship between natural parent and child, but the nature of the relationship will have a bearing on the court’s decision. If the deceased and the claimant are estranged, the claimant may have to make a stronger case than otherwise necessary to justify the intervention of the court. Also, the court will find it significant if the deceased estate is partly composed of assets that were inherited from the natural parent’s estate.

Time Limits For A Stepchild To Contest A Will

An eligible stepchild in WA can contest a will for six months following the date that probate is granted to the executor or administrator of the estate. The Supreme Court can give leave for a stepchild to make a claim after this time limit in the interests of justice. The court is able to order a redistribution of the estate even if the executor has already distributed the assets of the estate to the rightful beneficiaries.

The contested wills team at Armstrong Legal is highly experienced at helping clients file Family Provision Claims. The team can advise you on your rights under estate and probate law, and help a stepchild contest a will in WA. For assistance with any legal matter, please call 1300 038 223 or contact our team to book an appointment.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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