Can a Stepchild Contest a Will?

With around one-third of all marriages ending in divorce, blended families have become increasingly common throughout Australia. With marriages, divorces, separations, and de facto relationships, families are now much more complex structures which often invariably include biological offspring, adopted children, and one or more stepchildren.

What Is A Stepchild?

According to the Family Law Act of 1975, the definition of a stepchild is a minor whose biological parent gets married to or is in a de facto relationship with someone who isn’t the child’s other biological parent. The stepchild isn’t necessarily required to have lived in the same home as their stepparent, and they are no longer a stepchild if they’ve been adopted by their stepparent. It’s also important to note that de facto relationships can also include same-sex couples.

As the Family Law Act is a national law, parents throughout Australia have a legal requirement to provide financial support to all biological children. However, there are separate rules in each state which apply to stepchildren and adopted children, including different requirements regarding parenting arrangements and providing financial support.

Does A Will Automatically Cover Stepchildren?

The short answer here is no.

Under current legislation, stepchildren in most Australian states do not have the same legal rights as biological children regarding Wills and inheritances. That means when a stepchild is claiming from their deceased parent’s estate, inheritance law can be a complicated grey area.

Parents in blended families will usually ensure their spouse, partner, or biological children are all provided for in their Will. But they may decide not to include any of their stepchildren from their partner’s previous relationships.

When parents in blended families do not have a legal Will, their estate will be distributed when they pass away under the state’s intestacy laws. In most cases, their estate would be distributed evenly between their partner and/or their biological children. Because stepchildren have no biological relation to the deceased, it’s unlikely they would be provided for automatically in this division.

Can A Stepchild Contest A Will?

Do stepchildren have any legal rights if they’ve been left without adequate provision from their stepparent’s deceased estate, or omitted completely from their Will? Similar to when parents, siblings, former spouses, and ex de-facto partners aren’t expressly listed in a Will, stepchildren may also be eligible to make a claim for inheritance by contesting the will.

The rights of stepchildren contesting a Will in family provision claims varies slightly between each state of Australia. Under NSW legislation, someone can contest a Will by lodging an application with the Supreme Court for a Family Provision Claim. But in order to make a claim against a deceased estate, they must be identified as an eligible person under the Succession Act of 2006.

But just being their stepchild doesn’t ensure someone is automatically deemed eligible to contest their stepparent’s Will. Therefore, there are some eligibility requirements under the statutory rules before a stepchild can seek provision from a deceased estate of their stepparent.

The Court will usually only ever intervene with Family Provision Claims if they’re required to. So in order to pursue a Will Dispute, they must first establish they’re an eligible person by proving they’ve not been adequately provided for or were dependent on their stepparent before they passed away.

How Can A Lawyer Help To Contest A Will?

It’s common law in Australia that if a testator had full capacity and was not coerced in any way when they made their Will, their wishes should be respected. This is why Will estate disputes involving stepchildren often become so complex, they really need to be handled by Will and Estate Lawyers.

While stepchildren may have legal rights to make a family provision claim on their stepparent’s deceased estate, they must first establish their eligibility. And because each family is different, the eligibility of each case will usually depend on the individual circumstances of the stepchild within their family structure.

It’s also important to be aware that stepchildren and anyone else wishing to make a claim against a deceased estate in NSW must file within 12 months. And just because the Courts find someone is eligible to contest a Will, it doesn’t guarantee they will receive any provision against the estate. That can only be established after the application has been made.

These are just some of the reasons why it is vital to seek legal advice from Estate Litigation Lawyers first. A family lawyer with expertise in estate cases can help by determining the eligibility of stepchildren before pursuing a claim and work to ensure every obligation is met throughout the case.

What Does It Take To Contest A Will?

For a stepchild to be considered eligible when challenging a Will in NSW, they will need to prove their dependence and relationship with their stepparent before they passed away. This means they need to show that they lived together in the same household as a family at any particular time. They also need to prove they were wholly or partly dependent on either financial, emotional, or educational support from their stepparent at any particular time.

There are no specifications regarding the length of time living in the same household or how dependent the stepchild was on the stepparent. That being said, the longer they lived together as a family and the more dependent they were, the stronger their claim will likely be for provision from the estate. Other factors which may affect eligibility include the stepchild’s age and the closeness of the relationship.

While a stepchild will need to demonstrate they meet the above requirements, they do not need to have been happening at the same time. Remember too that the success of any claim will depend on the strength of the stepchild’s claim compared to other beneficiaries who were named in the Will, as well as any other unnamed competitors.

If you’re a stepchild who recently lost a stepparent, or you want to ensure your stepchildren will be taken care of after your passing, contact us today and speak with one of our experienced and understanding Deceased Estate Lawyers.

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