Jill was shocked when her stepfather John died and did not leave anything to her in his will. She was not particularly close to John but she did grow up with him when her biological father split from her mother when she was 10 years old. She thought of him as part of her family. Her stepfather had 2 kids from his earlier marriage. Jill did not know much about her mother’s financial affairs but vaguely recalls that when her biological dad and mum split, her mum received about $200,000. Her mum used that money to buy a house with her stepfather. John had also contributed his own savings to buy the house. That house was now worth $800,000 and John had left the house to his own biological children. Jill is upset that she had been left out of John’s will and wants to know whether she has any claim against her stepfather’s deceased estate.
In the past 30 years or so, blended families in Australia have become more commonplace in both married and de facto relationships. Many stepchildren now face circumstances where their biological parent had passed away before the stepparent and later not receiving anything out of their stepparent’s estate.
The good news for stepchildren is that in 2011 the law in Western Australia was changed to permit stepchildren to make a claim against the deceased estate of a stepparent. The catch is that there are only limited circumstances where a stepchild can make this claim.
Other states and territories in Australia also have laws to permit such claims with each have different criteria which the stepchild must meet to make a claim.
In this article, a reference to a “stepchild’s parent” means the stepchild’s biological parent.
Situations where a stepchild can launch a claim against the deceased estate of a stepparent
In Western Australia, a stepchild has a claim against the deceased estate of a stepparent under the Family Provision Act 1972 (WA). It does not matter whether the stepparent was in a married or de facto relationship with the stepchild’s parent. Under 7(1)(eb) of this act, the court has the power to order payment (or further payment) from a stepparent’s deceased’s estate so that adequate provision is made for the proper maintenance, support, education or advancement in life of a stepchild in the following circumstances: –
(a) the stepparent had received assets from the estate of the parent of the stepchild;
(b) the value of the assets received by the stepparent from the estate of the parent of the stepchild exceeded the sum of $517,000.
The key issue is what forms the “estate of the parent of the stepchild” that was received by the stepparent. Many gifts or transfers of assets to the stepparent prior to or when the stepchild’s parent passes away do not fall within “the estate of the parent of the stepchild” and hence are not counted in determining whether the threshold of $517,000 is crossed.
Assets falling within the meaning of the deceased estate of the stepchild’s parent
The case of Bushby -v- Gayle Kristin Bushby as Executor of the Estate of Florence Born [2024] WASC 54 is instructive. In this case, the stepchild was making a claim against the stepparent’s deceased estate. The Supreme Court of Western Australia held that the threshold of $517,000 that must be crossed refers only to assets that fall within the “deceased estate” of the stepchild’s parent. It does not refer to assets received by the stepparent through gifts prior to the death of the stepchild’s parent or assets that passes to the stepparent through joint holding of the asset with the stepchild’s parent. What this means is best understood in the following schedule: –
| Type of asset received by the stepparent from the stepchild’s parent prior to or after the death of the stepchild’s parent | Does this asset fall within the estate of the stepchild’s parent and is to be counted in determining the threshold of $517,000? |
|---|---|
| Gifts the stepchild’s parent gave to the stepparent when both parties were alive. For example, the stepchild’s parent made a gift of cash or shares or jewellery or a car to the stepparent and which the stepparent continued to hold in the stepparent’s sole name at the time of death of the stepchild’s parent | Not counted as these gifts were made prior to the death of the stepchild’s parent and hence do not fall within the deceased estate of the stepchild parent |
| Bank accounts or shares held jointly by the stepchild’s parent and the stepparent at the time of death of the stepchild’s parent | Not counted as these assets pass to the stepparent by way of “right of survivorship” and hence do not fall within the deceased estate of the stepchild’s parent |
| Real estate held by the stepchild’s parent and the stepparent as “joint tenants” in the title of the real estate at the time of death of the stepchild’s parent | Not counted as these properties passes to the stepparent by way of “right of survivorship” and hence do not fall within the deceased estate of the stepchild’s parent |
| Superannuation death benefits which were paid to the stepparent after the death of the stepchild’s parent pursuant to a written nomination made by the stepchild’s parent | Not counted as the superannuation death benefit does fall within the deceased estate of the stepchild’s parent |
If the above assets which passes to the stepparent are not counted, then what assets fall within the deceased estate of the stepchild’s parent which would go towards determining the value of $517,000 to enable the stepchild to launch a claim against the stepparent’s deceased estate?
| Type of asset received by the stepparent from the deceased estate of the stepchild’s parent | Does this asset fall within the estate of the stepchild’s parent and is to be counted in determining the threshold of $517,000? |
|---|---|
All assets held by the stepchild’s parent in his or her sole name or held in his or her possession at the time of death such as: -
Any asset held on trust for the stepchild’s parent | Yes, to all these assets |
In addition, under section 7(1)(eb) of the Family Provision Act 1972 (WA), the court also has power to order payment (or further payment) from a stepparent’s deceased’s estate so that adequate provision is made to a stepchild when a stepchild was being maintained wholly or partly or was entitled to be maintained by the stepparent immediately before the stepparent’s death.
Here, it deals primarily with a stepchild who is dependent upon the financial support of the stepparent such as a minor and where the stepchild has a disability and was being supported or entitled to being supported by the stepparent. In this situation, the stepchild can launch a claim although the stepparent received less than $517,000 from the deceased estate of the stepchild’s parent.
Limitation period of 6 months to launch a claim
Finally, a stepchild intending to launch a claim against the stepparent’s deceased estate must make the claim within 6 months of the date when probate or letters of administration was granted to the executor or administrator of the estate of the stepparent. If a claim is not made within 6 months, the stepchild will still have an avenue to make this claim but now must show that it will cause the step child hardship if the claim is not permitted to be made outside the 6-month time frame.
If you require advice in making or defending a claim in respect of a stepparent’s deceased estate or any other deceased estate matter, please contact Robertson Hayles Lawyers at 9325 1700 or by email at enquries@robertsonhayles.com
Note
The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive, nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.