What rights do stepchildren have in challenging a Will?

Published 12 Feb 2019

Under the Succession Act 2006, biological children of the recently deceased have a number of rights with respect to inheritances. One such right is the ability to make a family provision claim if a child feels they've not been apportioned their fair share of their parent's estate.

This right does not automatically extend, however, to stepchildren. What does the Succession Act say about them?

What rights do stepchildren have in Wills and estates disputes?

In NSW, Wills are challenged by submitting a family provision claim. This is an application made to the Supreme Court of New South Wales to request a share, or a larger one, of the recently deceased's estate.

Section 57 of the Succession Act explains which people are considered eligible persons; this includes current and former spouses, partners in de-facto relationships, children, or people with whom the deceased were living in a close personal relationship. There is, however, no direct guarantee for stepchildren being able to submit a family provision claim.

This is not to say that stepchildren can't challenge Wills, but instead that they have to meet certain criteria outlined in Section 57. These are:

  • That the child was at any time wholly or partially dependent on the deceased, and,
  • At the same, or another time, was a member of the same household as the deceased.

Having an application for a family provision claim approved as a stepchild relies on being able to demonstrate to the court that these conditions were satisfied at some point in time. When making a judgment on a claim, the court will also take other factors into consideration, among them the nature of the relationship between the deceased and the stepchild, the obligations or responsibilities the stepparent had to their stepchild, and the financial circumstances the stepchild is in.

Getting the right advice

If you're a stepchild whose stepparent has recently passed, it can be yet another stressor to have to challenge a Will. But if you think you meet the criteria for an eligible person, it's worth speaking with expert lawyers who can advise you and, if required, help you put together a case. Family provision claims need to be made within 12 months of your stepparent's death, so it's important to seek legal advice early if you're unsure of your eligibility.

Need assistance challenging your Will? Get in touch with the expert team at Malouf Solicitors today.

Please call us on 02 8833 2000 to speak with a lawyer

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