16 December 2020

Can my step kids challenge my Will?



Explanation of who has the legal right to bring a family provision claim against a deceased estate.
Australia Family and Matrimonial
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The rise in divorce rates and blended families has resulted in changes in family dynamics and has added complexity to the way in which people view their estate planning needs. In some circumstances, it has generated expectations on step-parents to make provision for step-children in their Will and in other circumstances, it has resulted in contested estate litigation where step-children may not have been considered in a deceased's persons Will.

In order to contest a person's Will in New South Wales, the applicant needs to be within the class of "eligible persons" who have the legal right to bring a family provision claim against a deceased estate.

The class of eligible beneficiaries is set out in section 57 of the Succession Act 2006 and is summarised as follows:

  • the wife or husband of the deceased;
  • a person who was living in a de-facto couple with the deceased;
  • a child of the deceased, including an adopted child;
  • a former wife or husband of the deceased;
  • a person who was, at any particular time, wholly (entirely) or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceased; and
  • a person with whom the deceased was living in a close personal relationship at the time of the deceased person's death.

Being a step-child does not of itself make a person an eligible person to contest a deceased estate of a step-parent. However, step-children may be eligible to contest a deceased person's Will if they were a member of the deceased person's household and can establish that they were dependent on the deceased person at any point in time. They will also need to furnish sufficient evidence to support their position that they are an eligible person.

As is the case with any person contesting a Will, step-children will have 12 months from the date of death to commence their claim against the deceased person's estate.

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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