Stepchildren and family provision claims – Can I make a claim against my stepmother or stepfather’s estate?

Navigating the waters of a blended family can be difficult at the best of times. When it comes to Will disputes with these elements, the seas can get even rougher.

The most common form of estate challenge is what is known as a family provision claim. Stepchildren can make these types of claims against the estate of their stepparent in certain circumstances. The New South Wales Supreme Court has recently handed down a decision in Plummer & Anor v Montgomery [2023] NSWSC (‘the Plummer case’) which deals with this kind of estate dispute.

What is a family provision claim?

A Court will consider making a family provision order where an eligible person is contesting a Will on the basis that what has been provided for them in the deceased’s Will (or lack thereof) is not adequate and proper in the circumstances. That is, the Will does not adequately provide for their maintenance, education, or advancement in life.

For stepchildren considering a claim to their stepparents’ estates, there are two main questions to consider: eligibility and adequate provision.

Only “eligible persons” may apply to the Court for these types of order. In certain jurisdictions in Australia, stepchildren may fall under distinct category allowing them to bring a family provision claim. In New South Wales, this is not the case. Stepchildren typically seek to rely on being a dependent under section 57(1)(e) of the Succession Act 2006 (NSW), arguing they were wholly or partly dependent on the deceased and a member of their household at the relevant time, usually as children.

The next step is evidencing adequate and proper provision has not been made in the circumstances. This is a discretionary matter, which requires consideration of various elements including financial needs of the persons claiming and any competing claims.

The Plummer Case

This case concerned two stepdaughters who brought a claim against their step-mother’s estate. The step-mother made no provision for them in her Will. The stepdaughters applied to the Court for a family provision order seeking to contest her Will.

The stepdaughters were found to be eligible to make a claim, as they had lived with their father and their stepmother for a time as children. As minors, it was accepted that they had been partly dependent upon their stepmother, as well as their father, for basic needs. This was found notwithstanding that they had been primarily cared for by their mother following their parent’s divorce. The stepdaughters also had low incomes and demonstrated financial need.

However, the stepdaughters were ultimately unsuccessful due to the remoteness of their relationship with their stepmother. The Court found there were no close familial bonds between the deceased and her stepdaughters. This was not a case of a stepmother assuming a “close maternal role” or acting “like a surrogate mother”.

Rather, there had been barely any contact between them for over fifteen year’s prior to the deceased stepmother’s death, and none at all following their father’s death. The deceased made it clear in documents accompanying her Will that she did not wish for her stepdaughters to benefit from her estate in any way, describing “intolerable behaviour” they directed towards her as their father’s health diminished. In their judgement, the Court stated:

Although there are cases in which the relationship of a stepparent and stepchild may develop into a relationship which gives rise to the making of provision, this is not such a case.”

What This Means for You

Despite the unsuccessful claim in the Plummer case, it leaves the door open for stepchildren considering a claim in their stepparent’s estate.

You might be eligible to make a family provision claim to challenge a Will if you are a stepchild who had a close relationship with your stepparent and have not been adequately provided for in their Will. Our estate dispute specialists in the Private Wealth Law team at Chamberlains can assist you.


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