Blended families are becoming more common in Australia, and this shakes up how estates are planned. When a step-parent dies, their will might not look after stepchildren properly. This can stir up family disagreements and claims over what’s fair. Stepchildren in NSW face a tricky path when contesting wills. The court looks at who can make a claim, the hurdles they jump over, and the things judges mull over.

We aim to provide clarity on this often-misunderstood area of law, offering guidance for stepchildren who believe they have been inadequately provided for in a step-parent’s will and probate. Understanding the legal framework surrounding family provision claims is crucial for both stepchildren and step-parents to ensure fairness and prevent future conflict.

Understanding Blended and Step-Families

Definitions and Characteristics

Blended families and stepfamilies encompass a variety of forms. Essentially, they involve couples where at least one partner has children from a previous relationship. Furthermore, the children may vary in age, and living arrangements often differ:

• Full-time living: Some children reside with the blended family permanently.
• Shared custody: Others split time between households.
• Infrequent visits: A few children maintain less frequent contact.

While the Australian government uses specific definitions for statistical purposes, many of these families simply refer to themselves as families. Consequently, they might call all children “brothers and sisters” rather than using terms like “step-siblings.” Ultimately, the terminology is a personal choice based on what feels most comfortable for each household.

Legal Recognition of Step-Relationships

Succession law in NSW presents unique challenges for stepchildren. Unlike biological or adopted children, stepchildren are not automatically recognised as beneficiaries of their stepparent’s estate. This distinction arises from the legal interpretation of a stepchild’s relationship with the stepparent.

To establish a family provision claim, stepchildren typically must demonstrate:

• Dependency: Clear evidence that they relied on the stepparent for financial or emotional support.
• Household membership: Proof of living together as part of the same household.
• Additional evidence: Further documentation or arguments reinforcing their eligibility.

As a result, stepchildren often face a higher burden of proof, necessitating more thorough evidence and legal arguments to support their claim.

Eligibility of Stepchildren to Contest a Will

Legal Standing of Stepchildren

In New South Wales, stepchildren are not automatically considered eligible persons to contest a will. Unlike biological or adopted children—who have a statutory right to make a family provision claim—stepchildren face a higher threshold. This distinction arises from the legal interpretation of family structures and the principle of testamentary freedom, which grants individuals the right to dispose of their property as they see fit.

Consequently, to initiate a family provision claim, a stepchild must satisfy specific criteria under the Succession Act 2006 (NSW). These requirements centre on:

• Genuine need: Demonstrating that further provision from the deceased estate is necessary.
• Beyond natural inheritance: Proving that the claim exceeds any inheritance received from their natural parent.

By meeting these conditions, stepchildren overcome the higher eligibility threshold and may proceed with their claim.

Proving Dependency and Household Membership

The Succession Act 2006 (NSW) outlines two key factors crucial to a stepchild’s eligibility to contest a will:

• Dependency
• Household membership

These factors help establish whether the stepchild had a close enough relationship with the deceased to warrant a claim for provision from the estate.

Dependency A stepchild must prove that they were, at some point, wholly or partly dependent on the deceased stepparent. This dependency can be:

• Financial support (e.g., reliance during education)
• Material assistance (e.g., provision of housing or goods)
• Emotional support in specific cases (e.g., daily care for a disability)

For instance, a stepchild who depended on the deceased for financial support throughout university could argue this factor.

Household Membership A stepchild must also demonstrate that they lived with the deceased as part of the family unit. Important considerations include:

• Duration of cohabitation (longer periods generally strengthen the claim)
• Nature of the living arrangement (consistent residence versus occasional visits)

For example, residing with the deceased for a significant portion of one’s childhood typically provides stronger evidence of household membership than brief or sporadic stays.

Challenges Faced by Stepchildren in Family Provision Claims

Burden of Proof

Stepchildren in NSW, unlike biological or adopted children, are not automatically recognised as eligible to contest a will. As a result, they face a higher burden of proof when making a family provision claim.

To succeed, they must clearly demonstrate their eligibility to the court. This requirement can be both complex and demanding, often involving detailed evidence and legal arguments.

Competing Claims and Estate Size

The dynamics of blended families often lead to multiple potential beneficiaries. Potential claimants may include:

• Biological children
• Spouses
• Stepchildren

In these cases, the court must carefully weigh the needs and claims of all parties involved.

Moreover, the size of the deceased estate plays a crucial role:

• Larger estates can accommodate multiple claims more easily.
• Smaller estates may limit the court’s ability to provide adequately for everyone, putting stepchildren at a disadvantage.

For instance, if a modest estate must cover both biological children and financially dependent stepchildren, the court must balance each individual’s needs against the available assets. This situation can lead to complex legal battles and potentially unsatisfactory outcomes for some family members.

Key Case Studies

Bradley Bates v Robert Henry Cooke [2014] NSWSC 1259

The Bradley Bates v Robert Henry Cooke [2014] NSWSC 1259 case involved a blended family where the deceased, Mrs. Cooke, had children from a previous relationship as well as a child with her current husband. Mr. Cooke also had children from a previous relationship. The couple had made mirror wills, leaving their estates to each other and then to be divided equally among their five children.

Following Mrs. Cooke’s death, one of her sons from a previous relationship, Bradley, brought a claim against the estate. Bradley, the claimant stepchild, argued that there was no guarantee Mr. Cooke wouldn’t change his will and therefore, Bradley’s potential inheritance was at risk. He requested:

• Provision from Mrs. Cooke’s estate
• An order that her share of joint assets be treated as part of her estate

The court ultimately ruled against Bradley, finding that adequate provision had been made for him based on community standards.

The court highlighted that Bradley’s financial difficulties were largely due to his own choices and that, as a competent adult, he was responsible for his own financial decisions.

Spata v Tumino; Estate of Gina Spata [2017] NSWSC 111

The Spata v Tumino; Estate of Gina Spata [2017] NSWSC 111 case centred around the question of a stepchild’s dependency on a deceased stepparent. Mrs. Spata, who had no biological children, was survived by her three stepchildren from her husband’s previous marriage. She had inherited a portion of her husband’s estate, with the remainder going to his children.

Mrs. Spata’s will left her entire estate to her niece and nephew. However, one of her stepsons, John, filed a claim for provision. John had lived with Mrs. Spata and his father for periods during his late teens and twenties. He argued that he was a dependent member of the household and deserved provision.

The court found that John was not financially dependent on Mrs. Spata during the time he lived with her and his father. Several factors contributed to this conclusion:

• John was an able-bodied adult capable of supporting himself
• While Mrs. Spata provided some domestic help, it was not deemed essential for his well-being
• The home belonged to John’s father, further weakening the dependency claim

Although the court acknowledged a potential moral obligation for Mrs. Spata to provide for her stepsons, John’s claim was ultimately dismissed as he was not considered a dependent under the law.

Factors Considered by the Court

Nature of the Relationship

When determining a stepchild’s eligibility for a family provision claim, the court examines the depth of their connection with the deceased stepparent. Key considerations include:

• Duration of the relationship: How long the stepchild and stepparent were together.
• Level of care and support: Financial, material or emotional assistance provided by the stepparent.
• Emotional bond: Strength of the parent-child connection, evidenced by shared experiences and mutual affection.

For example, a stepchild who lived with their stepparent for many years and formed a strong parent-child bond would have a more compelling case than one with a more distant relationship.

Financial Needs and Contributions

The court also assesses the stepchild’s financial circumstances and any contributions made to the deceased’s estate:

• Income and assets: Current earnings, savings, and property ownership.
• Liabilities and earning capacity: Existing debts and ability to generate future income.
• Personal financial needs: Any hardship or inability to support themselves adequately.
• Contributions to the estate: Financial assistance or caregiving provided to the deceased.

Imagine a stepchild who helped cover medical expenses or provided daily care during an illness; such contributions would significantly strengthen their claim for provision.

Time Limits and Legal Process

Filing Deadlines

In New South Wales, strict time limits apply to family provision claims:

• Strict deadline: You must file a claim within 12 months of the deceased person’s death.
• Prompt action: Acting quickly is essential to protect your rights.
• Limited extensions: Although you can apply for an extension, the court is under no obligation to grant it.

For instance, if a stepparent passes away in January, a stepchild who believes they were inadequately provided for has until the following January to initiate legal proceedings. Failing to meet this deadline can significantly hinder your ability to contest the will.

Steps in the Legal Process

Contesting a will as a stepchild involves a structured legal process. While the specifics can vary depending on the complexities of the case, the general steps include:

• Seeking Legal Advice: The first and most crucial step is to consult with an experienced estate lawyer specialising in family provision claims. They can assess your eligibility, the strength of your case, and guide you through the process.
• Gathering Evidence: To support your claim, you’ll need to gather compelling evidence demonstrating your relationship with the deceased, your dependency (if applicable), and your financial needs. This might include financial records, photographs, correspondence, and witness testimonies.
• Filing a Family Provision Claim: If your lawyer deems your case strong enough, they will help you prepare and file a formal claim with the Supreme Court of NSW. This document outlines your relationship with the deceased, the reasons for your claim, and the provision you seek from the estate.
• Mediation and Negotiation: Before proceeding to a full court hearing, parties are often encouraged to participate in mediation. This process involves an independent third party who facilitates discussions to reach a mutually agreeable settlement.
• Court Hearing: If mediation fails, the case will proceed to a court hearing. During the hearing, both sides present their arguments and evidence before a judge, who ultimately decides whether to grant your claim and, if so, the extent of the provision.

Conclusion

Contesting a will as a stepchild in NSW involves navigating specific legal requirements regarding eligibility, dependency, and household membership. Understanding these complexities and the factors the court considers is crucial for stepchildren seeking adequate provision from a step-parent’s estate, especially within the dynamics of blended families.

If you are a stepchild considering a family provision claim or need advice on estate matters in a blended family context, it is essential to seek expert legal guidance. Contact PBL Law Group to speak with our experienced contesting wills lawyers who can assess your situation and advise you on the best course of action.

Frequently Asked Questions