Bowen Buchbinder Vilensky

Step Children Soon Able To Challenge An Estate

Have a Go News, October 2012

If you are part of a family involving step children or know someone who is, you need to be aware of an important change in WA legislation. In the past, step children were not able to challenge the Will of a step parent who was either in a married or de facto relationship with their mother or father. But that situation will soon change.

The FAMILY PROVISION ACT 1972 (formerly known as the Inheritance (Family and Dependants Provision) Act 1972, about to enter its third stage of reading in State Parliament, will become law, bringing WA into line with similar legislation that exists in the Eastern states. Even though this is a new law, specialists involved in estate planning have been anticipating it for several years, preparing Wills and other legal documents taking the changes into account. 

So what are those changes? 

While step children will not have precisely the same rights as biological children, they will be able to make claims from which they were excluded before. For example the son of a woman who was in a married or de facto relationship with a man who was not the son’s father, but who brought the boy up and treated them as if he was, can claim against his estate to be taken care of in the same way that he was taken care of when the man was still alive. If a person can show that they were wholly or partly maintained by a step parent, they almost certainly have grounds to challenge an estate if they were not named as a beneficiary. 

It may come as a surprise to many people that this situation hasn’t always existed in the past. But the truth is that even if a child’s step parent had an untimely death, say in a car accident, while the child was still young and dependent, he or she would not have had any direct legal claim to that person’s estate. Until the changes come into effect, this sad inequity will continue, but immediately the changes do occur, there may be a whole raft of sudden legal claims. 

The new law will also help protect the interests of step children who find themselves in a different situation. Take the example of the children of a man by his first marriage whose father remarries. In his Will, he leaves his whole estate to his wife – their step-mother. After his death, their step mother writes a Will in which she leaves all her assets, including those from her late husband, to her biological children from a previous relationship. 

Once again, in the past, the step children would have had no legal claim to the step mother’s estate, even if it was almost totally the result of their own father’s hard work, or a family inheritance from his side of the family. The new law changes that, so that step children who find themselves in this position have a right to claim. 

That is the essence of the changes. But like any law it will be open to interpretation by a variety of people with very different agendas. For example, a person whose mother entered a de facto relationship with a wealthy man, may try to assert a high level of financial dependency on the man, in order to claim from his estate, even though such dependency never existed. 

As always with such matters, the careful drafting of Wills and other estate planning documents is the key to ensuring that your estate goes unchallenged and that the people you wish to benefit on your death, do so. 

Morgan Solomon is Head of Wills & Estate Planning at Perth law firm Bowen Buchbinder Vilensky 

- Link to the original article >>