Western Australia is still unsure which Stepchildren should be
able to claim under Family Provision Legislation
On 25 October 2011 the Inheritance (Family and Dependants
Provision) Amendment Act 2011 (WA) ("the
Amendment Act"), was passed by both houses of
State Parliament. The main provisions of the Amendment Act are
unlikely to come into force until 1 July 2012 as debate continues
concerning the need for further reform.
Substantive amendments to the Inheritance (Family and
Dependants Provision) Act 1972 (WA) ("the
Act") were originally proposed in 1997. A
significant stimulus for the reform continues to be the inequity
arising out of the present list of eligible claimants. According to
section 7 of the Act, eligible applicants presently only
Spouses and de facto spouses;
Former spouses maintained by the deceased;
Children, including unborn children;
Grandchildren maintained by the deceased or whose parent died
before the deceased; and
The Amendment Act proposes to add to the above list by allowing
stepchildren, in certain circumstances, to make a claim against
their step-parent's estate.
"Stepchild" is defined as a person who is not a child
of the deceased, but is a child of the deceased's spouse or de
facto partner (assuming the de facto partner is one in whose favour
the Court can make an order under the Act). Also, the stepchild
must have been living at the date on which the deceased married the
spouse or entered into the de facto relationship with their de
The Amendment Act proposes that a stepchild can only make an
application for provision out of a step-parent's estate if:
The stepchild was being (or was entitled to be) maintained
wholly or partly by the deceased immediately prior to the
deceased's death; or
The deceased had received (or was entitled to receive) property
with a value greater than the prescribed amount (which is yet to be
determined) from the estate of a natural parent of the
Whilst the above amendment improves the situation for
stepchildren in Western Australia, there are still some problems.
For example, what happens in circumstances where:
the relationship between the deceased and the stepchild's
natural parent breaks down before the date of death, but the
relationship between the deceased and the step-child
the step-child's natural parent dies before the deceased
person but the deceased person's marriage to the natural parent
continued until the natural parent died?
the deceased person remarries after the death of the
stepchild's natural parent but the deceased person's
marriage to the natural parent continued until the natural parent
Pursuant to the present Amendment Act, a stepchild who finds
themselves in any of the above situations will not be able to make
a claim against their step-parent's estate.
The Government is now considering whether the definition of
"spouse" should be amended to include a "former
spouse", or whether the definition of "stepchild"
should be amended to be consistent with the Queensland succession
legislation. The Queensland legislation declares that a
stepchild's eligibility to claim against a step-parent's
estate does not disappear merely because of the circumstances
outlined in the examples above. What is relevant, for the purpose
of the Queensland legislation, is an ongoing relationship
between the stepchild and the deceased.
A similar provision in the WA legislation is required to avoid
inequity. However, if further amendments are to be made to the Act
then a new Bill will need to be introduced to State Parliament in
the Autumn Session of 2012. Assuming a Proclamation occurs on 1
July 2012, it will possibly be another 4 months until any
stepchildren are able to make a claim against a step-parent's
The Amendment Act also proposes amendments concerning the name
of the Act, undisclosed property, interim orders and evidence.
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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The decision highlights the extent of a Court's power to interfere with the testamentary will in family provisions claims.
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