Posted on 18 Feb. 2013
New WA laws offer inheritance rights to stepchildren
By Slater and Gordon
With high rates of divorce and re-marriage in recent times, today’s modern family is often a blend of step-parents and their stepchildren.
While these relationships are usually strong and loving, sometimes they can be strained and adversarial – often leading to questions about legal rights to inheritance.
Previously, stepchildren – unlike biological children, adopted children and grandchildren – had no inheritance rights.
However, new laws recently introduced in Western Australia – one of the last Australian states to have such a provision – mean that step children can now challenge a will if they feel it doesn’t adequately provide for their needs, like housing or education.
What is the definition of a stepchild?
The Family Provision Act 1972 defines a stepchild as a child of the deceased's spouse or de facto partner. They must have been living at the date on which the deceased married the spouse, or entered into that de facto relationship.
Under what circumstances can a stepchild make a claim?
There are two scenarios under which a stepchild is able to make a claim. Firstly, the stepchild must have been wholly or partly maintained by the deceased immediately before the deceased's death.
The second scenario is if the deceased received or was entitled to receive property from the estate of a parent of the stepchild (other than as a creditor) provided the value of the property at the time of the parent’s death is greater than $460,000.
What should step-parents consider when preparing their will?
If a step-parent dies and hasn’t made adequate provision for their stepchildren in the will, the stepchildren can make a claim against the estate. The court has the discretion to override any gifts to others under the will to provide for these stepchildren.
The new legislation means that in the event of a claim, the courts will look at what happens when the step-parent passes-away and not when the will was made.
With these new laws in place, step-parents should make sure they have an up-to-date legal will which takes into account that stepchildren can now challenge a will if they don't feel it sufficiently provides for them.
The more that people are aware of these changes and make the appropriate provisions, the less heartache and legal battles there will be later on.
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