Navigating Co-Parenting

Stepchildren’s Family Provisions Claims

Traditionally an Australian “family” was made up of a couple and one or more children. Progressively, the concept of “family” has evolved and changed.

The Australian Bureau of Statistics refers to the continuing “family” evolution as “Family Blending”, a cycle of formation, change and re-formation.

In the Family Provision Act 1972 (WA) (Act) context, blended families are families where a parent with children re-partners, whether they, the “new couple”, have additional children together or not.

Blended families create complex factual scenarios with many competing interests between spouses, de facto spouses, former spouses, children, stepchildren and grandchildren all of which can continue after the death of any “benefactor” in the relationships.  In that circumstance, testators battle moral, financial and emotional dilemmas in trying to give effect to his or her testamentary intentions whilst trying to ensure that the testator makes provision for those beneficiaries who have a “need”.

In the stepchild context, the intent and purpose of including stepchildren as a category of applicants who can make application for provision from a deceased’s Estate under the Act, was to prevent the situation where the stepchild’s biological parent dies leaving that parent’s entire Estate to their spouse, but after the biological parent’s death the stepparent changes their Will, either wholly or partially, or dies without a Will, potentially leaving the stepchild without provision from the deceased biological parent’s Estate.

The Act appears on a “simple read” to adequately protect stepchildren’s rights and entitlements to make an application for provision from a deceased stepparent’s Estate in the above described circumstance.  But, what happens where the stepchild is a minor or they have a disability?

Who looks after that stepchild’s interests?

What protections are in place in the Act to protect the innocent minors and stepchildren?

Like many other situations, it is for the stepchild’s remaining family, next-of-kin or guardian to protect, assist and guide those that cannot, for many reasons, protect their own interests. There is, therefore, a continuing need for those persons to be made aware of a stepchild’s legal rights and their entitlement to make an application for provision from a stepparent’s deceased Estate under the Act.

Our experienced Kott Gunning team are ready and able to assist you and your family with:

  • advice to beneficiaries about their rights as a beneficiary of a deceased Estate or their rights if no provision is made for them in a Will or in an Administration (subject to their relationship with the deceased);
  • representation in Family Provisions Act legal proceedings;
  • drafting Wills and advice about the effect of Wills or the absence of a Will;
  • the preparation of Estate Planning strategies and documentation;
  • advice about the obligations of Executors and Administrators of deceased Estates;
  • advice about how the superannuation of a deceased must be considered and distributed (did you know that superannuation does not form part of a deceased’s Estate, or, therefore, any gift made under a Will, unless the superannuation trustee pays the superannuation proceed to the deceased’s Estate?);
  • challenging the distribution of a deceased’s superannuation; and
  • advice about the facts relied on to support Probate Caveats and the preparation and lodgement of a Probate Caveat.

Please contact us with your personal enquiry, we can help.

Claire Hawke-Gundill – Partner –

Peter Mariotto – Special Counsel –

The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.