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26 Nov 2020

Our Estates Litigation lawyer, Alexandra Turner, explores how stepchildren may be able to challenge a will in certain circumstances by making a claim for proper provision.

stepchildren challenge a will

Did you know that where a stepchild has not been provided for from the estate of a stepparent, in some circumstances they may be able to bring a claim for proper provision? Many people will be shocked to learn that such a claim is possible.

How can stepchildren challenge a Will in WA?

One way in which a will can be challenged in Western Australia is pursuant to the provisions of the Family Provision Act 1972 (WA) (“the Act”). It is important to know that each State or Territory has its own legislation and so the law will vary across borders.

Under the Act, certain categories of person can bring a claim. There are two categories for stepchildren.

A claimant under the Act seeks a greater share from the deceased’s estate for their proper maintenance, support, education or advancement in life. Essentially, the Court is asked to alter the effect of the deceased person’s will, if they had one, or the effect of the law of intestacy if the person did not have a will.

Wills can also be challenged on the basis of invalidity due to proof of insufficient capacity of a will-maker, or where it can be established that the will-maker was unduly influenced by another person.

When can a stepchild bring a claim for provision from the estate of a stepparent in WA?

Since 2013, stepchildren are eligible claimants under the Act in limited circumstances.

A stepchild will be an eligible claimant in the following circumstances:

  • a stepchild of the deceased who was being maintained, wholly or partly, or was entitled to be maintained, by the deceased immediately before the deceased’s death; or
  • a stepchild of the deceased, if:
    • the deceased received or was entitled to receive property from the estate of a parent of the stepchild, other than as a creditor of that estate; and
    • the value of that property, at the time of the parent’s death, is greater than the “prescribed amount”. Currently in WA, the prescribed amount is $517,000.

Is it common for stepchildren to challenge a Will?

The number of claims for further provision seems to be trending upward. This is for complex reasons, including the fact that there are more people having more than one long-term relationship, and stepchildren, in their lifetime. However, it is worthwhile noting that most of these kinds of claims are able to be settled between parties, with the assistance of lawyers and expert mediators in the early stages of Court proceedings, without the need for a trial.

How HHG Legal Group can assist

For over 100 years HHG Legal Group has been proudly serving Western Australian families, business and individuals. Our Wills and Estates team is one of the most highly regarded in the state, so if you require advice or assistance with an estate dispute, we can provide pragmatic advice and insight in order to gain the best outcome for you and your family.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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