Can step children make a family provision claim in a case of intestacy ?

Date: May 26, 2015

In the estate planning process, dying without a will means a person's property is not distributed according to the direct wishes of the deceased.

Instead the person is said to have died "intestate" and specific legal rules apply to how the assets in the estate are divided and dispensed. In most cases, the estate will be divided among the deceased's current spouse and children, after which blood relatives may be entitled to a share as well. 

Stepchildren are further down on the list of people who can inherit part of an intestate estate; however in one case, a stepdaughter was able to make a successful claim for family provision relief.

In this case before the Supreme Court of  NSW, a man was found dead in his home in the summer of 2013-14 having left no will outlining how he wished his estate to be distributed. The man had no children and was divorced.

His ex-wife made no claim to his estate once she was notified of her former spouse's death. His immediate blood relatives had all predeceased him, including his parents and brother.

Under the intestate laws of NSW, the estate would be inherited by the state, as no other close blood relatives could be found. However, the daughter of his ex-wife filed proceedings in the courts for family provision relief under the Succession Act 2006.

During her infancy, the step-daughter lived with the deceased and her mother for some years. During this time she believed the deceased was in fact her natural father.

The summons in the case named no defendants who might challenge her claim. But, notice of the proceedings was served to the two people and organisations most likely to contest her claim - her mother and the State of New South Wales. Both chose not to appear in opposition to her efforts to seek relief under the succession laws.

Because her mother did not make an appearance to challenge the claim, her interest was disregarded and the Judge was satisfied the stepdaughter of the deceased should receive a provision from the estate. 

The Judge made the point that she "not only has a familial claim on the estate of the deceased, but she has been left with a substantial need for assistance." 

If you need advice on contesting a will or making a claim to an intestate estate, contact an estate lawyer