The West Australian State Parliament has recently passed the
Inheritance (Family and Dependants Provision) Amendment Bill 2011.
The Bill was assented to on October 25 2011 and awaits proclamation
before inevitably coming into full operation.
The major change within the bill is the creation of a new class
of persons able to claim under the Inheritance (Family and
Dependants Provision) Act ("the Act"). This is an Act
under which the categories of persons currently able to claim
against the estate of a deceased person under the Act in Western
Australia are limited to:
spouses and de facto partners of the deceased;
children of the deceased ;
parents of the deceased;
grandchildren of the deceased; and
former spouses or former de facto partners of the deceased that
were being maintained by the deceased at the date of death.
When the amendment to the Act becomes law, stepchildren of a
deceased person will be able to challenge the will of their
deceased step-parent on the basis that the will does not make
adequate provision for their proper maintenance, support, education
or advancement in life. To qualify as a "stepchild", a
person must be a child of the deceased's spouse or de facto
partner and must have been living at the date on which the deceased
married the spouse, or entered into a de facto relationship. To be
able to make a claim, the stepchild must have been wholly or partly
maintained by the deceased immediately before the deceased's
The new legislation will also allow for stepchildren of the
deceased to make a claim against the deceased's estate if the
deceased had received, or was entitled to receive, property from
the estate of a parent of the stepchild greater than the amount
prescribed in the regulations to the Act.
This means that if you inherit more than the prescribed amount
from your partner on their death, and do not make adequate
provision for your partner's children, then those stepchildren
will be able to make a claim against your estate, regardless of
whether you provided maintenance to them prior to your death.
Currently, there are no regulations to the Act prescribing the
amount; but we anticipate that this will be prescribed before the
changes come into effect. We will provide an update on the
position in due course.
Note that the legislation that governs what happens on your
death is that which is current at the date of your death and not at
the date of the creation of your will. If you have made a will
without adequate provision for your stepchildren and you pass away
once these take effect changes, your stepchildren may make a claim
against your estate and the court has the discretion to override
the gifts to others under your will to make provision for your
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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