Can I contest my Step-Parents Will?
With a continuing rise in “non-traditional” families in Australia, there are an increasing number of step-children seeking to contest the Will of their step-parent, if they have been left out or not adequately provided for. It is often the case that the child’s natural parent died leaving their entire estate to their step-parent. Then the step-parent dies without providing anything to their step-child in their Will, leaving the step-child feeling cheated out of their natural parent’s estate.
In New South Wales, unlike biological and adopted children, step-children are not expressly listed as one of the categories of “eligible persons” defined by the law as being allowed to contest a Will.
To prove their eligibility to make a claim, a step-child has to take a more complex legal path. The Court must be satisfied that:
- Firstly, the step-child was at any particular time, wholly or partly dependent upon the deceased person and a member of the deceased person’s household;
- Secondly, having regard to all the circumstances of the case, there are factors warranting the making of the application. Factors warranting are generally types of factors that give the step-child the status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased. These factors may include but are not limited to: the nature and duration of the relationship between the step-child and the deceased, the financial circumstances of the step-child, the nature and extent of the deceased’s estate, any contribution made to the deceased’s estate by the step-child, and the extent to which the step-child was supported or maintained by the deceased; and
- Thirdly, that the step-child has not been adequately provided for in the deceased step-parent’s Will.
Given the eligibility criteria and the fact that all families vary in their circumstances, not all step-children will be eligible to make a claim. For example, a step-child who has never lived in their step-parent’s household, or were otherwise never dependent upon them, will not be eligible to make a claim. Even if the Court finds the step-child to be an eligible person to make a claim, this does not guarantee they will be successful in their claim. Success depends on the circumstances of each individual case and cannot be established until after a claim has been made.
Cases involving step-children are often complex in nature and it is important to seek the advice of an experienced estate litigation lawyer who can assess whether you have a claim.
It is important to note that in New South Wales, a Family Provision claim must be filed with the Supreme Court within twelve (12) months from the date of death of the deceased.
