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7 April 2017 5 ways your step-child could claim on your estate

By Angela Harvey, Partner and Alexander Moddel, Graduate Solicitor

Step-children may be able to make a claim against your estate if they are able to prove firstly, their eligibility, and secondly, that you have not given adequate provision for their proper maintenance, education or advancement.  5 different cases are discussed below.

  1. I have an estranged relationship with my step-child and I haven't seen them for decades

In Doshen v Pedisich [2013], a claim was made by an adult step-daughter who had an acrimonious relationship with her father and step-mother. The step-daughter lived with her father and step-mother for a period of 13 months upon her immigration to Australia at age 16 and claimed that during the period that she was a member of the household, she was financially dependent on both her father and step-mother. Since no provision was made for the step-daughter, the Court made an order for provision in her favour.

  1. My step-child lived in my house for just over a year but I provided financial support only

In Siddle v Ellis [2011], a claim was made by the teenage step-child for provision from the estate of his deceased step-mother. The applicant lived with his father and the deceased for a period of 14 months prior to her death. In that time, the deceased had undertaken financial support for the applicant, yet evidence was presented that led the Court to conclude the deceased had no direct responsibility for the applicant's welfare. His father provided that support. The Court concluded that the applicant was not dependent on the deceased and rejected the step-child's claim.

  1. My second spouse and I are leaving everything to each other by mutual wills and our children/step-children receive the estate in equal shares after we both die

In Bates v Cooke [2014], the applicant made the claim for provision from his mother's estate passing to his step-father, knowing that he would not be eligible to make a claim on his step-father's estate as he was never wholly or partly dependent on his step-father, nor was he ever a member of the same household. The application was rejected on the grounds that adequate provision had been made, the applicant would just have to wait to receive his share at the same time as his siblings.

  1. I re-marry and leave everything to my child and nothing to my first wife's daughter

In Lumsdon v Gargano [2012] the applicant's mother married the deceased when the applicant was four years old. The entirety of the deceased's estate passed to the defendant, a child from the deceased's second marriage, and no provision was made for the applicant in the deceased's will. After proving her eligibility, the Court determined that adequate provision for the step-daughter's proper maintenance or advancement in life had not been made, and awarded her a lump sum from her deceased step-father's estate

  1. I die without leaving a will

In Re Estate of Ian McDermott; Application of Aiveh Ahmad [2015], the applicant was the step-daughter of the deceased who died without a will. Given that the applicant had a substantial need for financial assistance, her application contained a request for an order for the entirety of the deceased's estate, and not just a portion. The Court considered all the circumstances of the case and awarded the entirety of the deceased's estate to the step-daughter.

To mitigate the risks of unexpected claims on your estate, Swaab Attorneys can assist you with effective Estate Planning advice. For further information, please contact Angela Harvey at Swaab Attorneys on 02 9233 5544 or axh@swaab.com.au.

Angela Harvey, Partner  |  Phone: +61 2 9233 5544  |  Email: axh@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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