Succession Act Claims - Can a step child make a claim on an estate?
Date: November 10, 2010
Authors: Jana Whitby B.A., LL.B. (Hons.)
Are you a member of a modern family which like many others consists of step-children? If so, do you wonder what your responsibility is as a step-parent to make provision from your Estate to your step-children?
Recent cases in both the Supreme Court of Victoria (Robertson v Koska [2010] VSC 134) and the New South Wales Court of Appeal (McCarthy v McCarthy [2010] NSWCA 103) have made the position clear that a step-parent when making a Will must consider his or her obligation to provide for their step-children. If a step-parent fails to make any provision then depending upon whether other relevant factors exist which are required to satisfy the claim then it is likely that a step-child will receive a portion of their step-parent’s Estate.
Some relevant factors the Court will considere when determining a claim of this nature:
- Whether there was a bond of affection between the step-parent and step-child. This is evidenced by such things as:
- during the time when the parties cohabitated in a family unit, the step-child would refer to their step-parent as either mother or father; and,
- even if separation between the step-child’s biological parent and step-parent occurred the relationship between step-parent and step-child continued.
- Whether the step-child spent time caring for their step-parent in later years.
- Looking at the relationship as a whole whether it can be said that it was comparable to the relationship of mother and daughter, or, father and son.
- If a Will has been made by the step-parent which provides that the step-child is to take a portion of their Estate, (even if this will is later found to be unenforceable because for example the step-parent lacked testamentary capacity at the time the Will was made), it reinforces the step-child’s claim to a portion of the step-parent’s Estate.
- The size of the Estate and the number of claimants to the Estate.
- The financial circumstances of other claimants.
- The need put forward by the step-child.
- The moral duty of the step-parent to provide for the maintenance of the step-child.
- and other things of this nature.
Of course each case is determined upon its own particular facts and according to the statutory requirements.
If you have any queries about Estate Planning or are in a position similar to the example set out above then please contact us to provide you with any necessary assistance.
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