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Can Stepchildren Contest a Will?

Blended families with complex family structures, that include one or more stepchildren, are becoming increasingly common throughout Australia and NSW. This has caused an increase in the number of stepchildren contesting Wills.

This increase is in direct correlation to rising divorce rates. It’s now quite common for a couple to get married, have kids and then divorce. When both partners go on to remarry and have even more kids, the overall family structure immediately becomes complicated. Then, if one of the partners was to die, what happens to the rights of the all the kids involved?
The rights of step-children in relation to family provision claims vary slightly in each State (call us to find out how). According to the Succession Act, being a step child does not, of itself, make someone eligible to contest. However, they might still be eligible if it can be proved that they were dependent on the person (parent) who has passed away.

This means a stepchild is not automatically deemed to be an ‘eligible person’, under law, to contest a Will. They must therefore establish that they are an ‘eligible person’ if they want to pursue a Will Dispute and have a chance of being adequately provided for.

Eligibility for a stepchild is a person who was, at any particular time, wholly or partly dependent on the deceased person, and was, at that particular time or at any other time, a member of the household of which the deceased person was a member.

Overall, step-children do have the right to make a family provision claim on the Estate of their step-parents, provided they can establish eligibility. Eligibility will depend on the individual circumstances of each case, as each family is different, which is why it’s important to seek legal advice to determine if eligibility even exists before pursuing a claim.

If you have stepchildren and you want to understand their rights, or you are a stepchild, contact us today.

What factors do the Court consider when determining eligibility for a stepchild to contest a will?

The main factors the court considers to determine whether a stepchild has grounds to challenge a will are as follows:

  • Closeness of the relationship (was the stepchild’s relationship one that could be described as being ‘parent and child’ or was the stepchild raised as a permanent member of the family)
  • Age of stepchild, when they become a member of the family.
  • Extent to which the stepchild was supported by the deceased. This includes financial, educational and emotional support.

Reference: Graziani v Graziani (Unreported, Supreme Court, Cohen J, Eq 2678 of 1985, 20 February 1987)

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