In Western Australia, long-awaited amendments to the law to
allow step children to claim against the estate of a deceased
step-parent are a step closer but not yet operative.
For many years, each State has had legislation allowing spouses,
children, parents and in some cases former spouses or
grandchildren, to challenge a will or the distribution of an estate
to claim for their proper maintenance, support, education or
advancement in life. Such claims are a fertile source of litigation
in the Supreme Court.
While stepchildren are increasingly common in blended families
these days, they are not treated equally under inheritance laws.
The relationship of stepchild and step-parent may be as close, or
sometimes closer, than the relationship between parent and natural
child, yet the right of such children to seek increased provision
from the estate of their step-parent varies between each State and
The current status of a stepchild as a potential claimant is as
Queenslandand Tasmania: "child" for this
purpose of such claims includes a stepchild, and provides the
broadest scope for a stepchild making a claim;
Australian Capital Territoryand Northern Territory: a
stepchild may claim only if they were being maintained by the
deceased prior to the death;
South Australia:a stepchild may claim only if they
were being maintained by the deceased prior to the death or had a
legal right to be maintained;
New South Wales: there is no express reference to
stepchildren in their Succession Act, but a stepchild could claim
under a catch-all category of applicant only if they were both
dependant on the deceased and a member of the deceased's
household at the date of death.
Western Australia:amendments to the Inheritance
(Family and Dependants Provision) Act 1972 were proposed in
2007 to include limited rights for step-children to claim. Those
changes had not been passed by parliament by the time of the 2008
WA election and it has since taken some time for the issue to be
By a combination of amending laws passed on 25 October 2011 and
22 November 2012, a stepchild of a deceased step-parent will soon
have the right to claim from their step-parent's estate in
Western Australia if:
the stepchild was being wholly or partly maintained by the
deceased, or was entitled to be wholly or partly maintained by the
deceased, at the date of their step-parent's death; or
the deceased received or was entitled to receive property from
the estate of a parent of the step-child other than as a creditor,
and the value of that property was greater than a prescribed
For this purpose, a stepchild is defined to mean a person
who was alive on the date on which the deceased married or entered
into a de facto relationship with a parent of the person but who is
not a child of the deceased. The prescribed amount is not
currently known but is expected to be set out in Regulations.
The amendments have been passed by Parliament and received Royal
Assent but will not come into effect until formally proclaimed and
will only entitle a stepchild to make a claim where the deceased
died on or after the date the provisions come into effect.
While the amendments confer legitimacy on claims against an
estate made by a stepchild, Parliament has made it clear that
stepchildren still do not have the standing of a natural child of
the deceased and may only claim in specific circumstances.
Parliament could simply have amended the definition of
"child" to include a stepchild and enabled the Court to
exercise discretion in relation to such claims but it has
deliberately chosen to limit the opportunity to bring such claims.
This may prevent legitimate claims, despite genuine need, which
fall outside the two grounds under which a stepchild may apply.
While these amendments are a step in the right direction it is a
striking example of lack of consistency between State and Territory
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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