5 ways your step-child could claim on your estate

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.

2. 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.

3. 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.

4. 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

5. 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.