Can a step-child make an inheritance (family provision) claim?

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Step-childrens' rights under the Family Provision Act 1972

Under changes to the law in WA in 2013, a step-child is eligible to claim for greater family provision under a Will or an intestate person’s estate only in limited circumstances. Those circumstances are in the situation the step-child:

(a) was maintained wholly or partially upon the death of the Deceased; and/or

(b) the step child’s biological parent bequeathed property to the Deceased when the biological parent died and this grant is more than a prescribed amount and equates to more than was left to the step-child by the Deceased.

The problem of intestacy of a step-father or step-mother

Under the Administration Act 1903 ('Administration Act'), step-children are not eligible to inherit an interest in a deceased estate from a step-parent.

Children (described as “issue” under the Administration Act) are the direct descendants and this therefore does not include step-children, unless formal adoption takes place.

The legal test under the Family Provision Act 1972

The Family Provision Act, provides a two limbed test the Court will apply before determining a person’s family provision claim.

The first limb is to establish if you have a right under the Family Provision Act.

The second limb of the test is to determine whether the Deceased’s Will or the Administration Act does not make adequate provision from the estate for the proper maintenance, support, education or advancement in life. This test will rely on the claimant providing specific evidence about their needs for ‘proper’ support.

A person seeking a greater provision from an estate does not have an absolute right to a greater inheritance. The Court may exercise its discretion and the exercise of the discretion is dependent upon many different factors.

If it is found from the evidence presented to the Court that adequate provision has not been made the Court has discretion to make such provision as it thinks fit. It must take into account the relevant facts as they exist at the time of the making of the order.

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