Are Stepchildren Able to Apply to the Court for a Family Provision Order?

May 20, 2022



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Blended families and step-families are increasing throughout Australia. In 2016, they accounted for 10% of families. As families are interwoven with one another, inheritances can become even more contested than they otherwise can be. When a relative has died, and the most immediate matters have been dealt with, attention turns to the division of the estate of the deceased. If you have been left out of a will or you don’t believe you have been adequately provided for in the will, you will want to know what your legal entitlements are. Similarly, if you are concerned that someone may make a claim against your estate in conflict with your will, you need to consult estate planning lawyers to know how your will might be affected and what it means for your family members as beneficiaries to your will. 


To obtain a family provision order, you must be an ‘eligible person’ for the purposes of section 57(1) of the Succession Act 2001 (NSW). Under that provision, there is a list of relatives that are deemed to be ‘eligible persons’ if they are omitted from a will. The most clear-cut include:


  • The deceased’s spouse (whether married or de facto).
  • The deceased’s children.


However, the act also provides for other kinds of relationships and a plain reading of the text may leave you without the guidance you need to adequately draft your will. This is where the knowledge of estate planning lawyers comes in.


Here are some insights from two recent NSW decisions on the status of step-children as eligible persons for the purposes of applying for a family provision order.


In Evans v Levy [2011] NSWCA 125 a stepdaughter was found to be an “eligible person” under the repealed Family Provision Act 1982 s 6(1)(d) (which is in the same terms as s 57(1)(e) of the Succession Act 2006). That section provides that an eligible person includes a person who was wholly or partly dependent on the deceased.  The court held that because from the age of 12 until the age of 27 when she was married, the step-daughter had been a dependent. She and her husband stayed for a further with the deceased and her mother. It is important to note however, that ultimately the stepdaughters claim failed on other grounds. She was deemed by the court not to be in sufficient to need for it to be appropriate to grant a family provision order.


More recently, in Doshen v Pedisich [2013] NSWSC 1507, the court helped define more clearly what it means to be or to have been a dependent. The court said that:


“The word dependent connotes a person who relies upon support of another, financial and/or emotional… the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.” 


In this case the step-daughter was also deemed to be an eligible person on the basis that she had been at least partially dependent for a period of time. At age 16, the step-daughter travelled to Australia in December 1964. She lived with the deceased and her father between December 1964 and February 1966. For a period of 15 months she lived as a part of the household of the deceased. During that period, she was wholly dependent upon the deceased and my father for all my needs including food, clothing and daily necessities. Even after the plaintiff moved out, the deceased and the father were sending money for the plaintiff’s maintenance. There were factors which warranted the making of her application and the provision made for her in the will was inadequate and so was entitled to a lump sum of $75,000.00. 


As illustrated by these two cases, determining whether a step-child is an eligible person is the first a series of complex steps for the court to make a family provision order. Carneys has several experienced estate planning lawyers who can discuss these matters with you whether you are considering drafting a will or making an application.