The Inheritance (Family and Dependants Provision) Amendment
Act 2011 (WA) was introduced in 2013 to allow a stepchild of a
deceased person to make an application for a provision out of the
deceased's estate in certain circumstances.
A stepchild is defined as being a person who was alive on the
date on which the deceased married or entered into a de facto
relationship with the natural parent of the stepchild but who is
not a natural child of the deceased.
Under the Family Provision Act 1972 (WA) there are only
two circumstances where a stepchild is eligible to make an
application for a provision out of the deceased stepparent's
Where the stepchild was maintained or entitled to be maintained
wholly or partly by the deceased stepparent; or
Where the deceased stepparent received or was entitled to
receive property from the estate of the stepchild's natural
parent and the value of that property at the time of death of the
stepchild's natural parent was greater than the prescribed
amount (currently $460,000).
Assets that a stepparent acquires by survivorship from the
natural parent of the stepchild do not count towards the prescribed
In Western Australia there are currently no decided cases on
stepchildren claims. The other states in Australia have a handful
of decided cases which set out some guiding principles which can be
applied (with caution, given that they relate to the local
legislation) to applications brought by stepchildren in Western
Compared to the other states in Australia, the eligibility
criteria for stepchildren claims in Western Australia is very
A stepchild's application for a provision out of the
deceased stepparent's estate will include a consideration of
the same factors as any other family provision claim, such as:
The applicant's financial position;
The size and nature of the deceased's estate; and
The totality of the relationship between the applicant and the
deceased and the beneficiaries and the deceased.
The decided cases on stepchildren claims suggest that the court
will look more closely at:
The needs of the stepchild;
The quality of the relationship between stepchild and
The extent to which the stepparent's estate can be said to
have been derived from the stepchild's natural parent.
A stepchild will need to demonstrate a greater need in
the relationship between the stepchild and stepparent is
distant or has suffered a period of estrangement; and
the extent to which the stepparent's estate reflects the
stepparent's own contributions and efforts as opposed to the
efforts and contributions of the stepchild's natural
Conversely, a stepchild may not need to demonstrate a great need
the relationship between the stepchild and stepparent is close
and akin to parent and child; and
it can be shown that the stepparent's estate is sourced
substantially from the stepchild's natural parent.
The law does not presume that the relationship between stepchild
and stepparent is more remote than the relationship between parent
and child. However, the decided cases show that it is often the
case that the relationship between stepchild and stepparent becomes
less close once the stepchild's natural parent dies. This has a
bearing on the court's assessment of the relationship between
the applicant stepchild and deceased stepparent.
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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