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Can a stepchild make a family provision claim?

Can a stepchild make a family provision claim?

Published on June 5, 2023 by Angelene Singh and Rebecca TidswellAngelene Singh and Rebecca Tidswell

In a recent decision by Hallen J, Plummer & Anor v Montgomery [2023] NSWSC 175, the Court considered family provision claims made by two adult stepchildren on the estate of their late stepmother.  This article will consider their eligibility, the factors warranting the claims, the nature of their relationship with their stepmother, their financial circumstances, and their needs.


Section 57(1)(c) of the Succession Act 2006 (NSW) (“the Act”) does not include a stepchild as an eligible person as they do not fall within the ordinary meaning of the term ‘child’ in the Act.  In fact, the Act does not define ‘stepchild’ at all.  See the decision of Henry J in Brown v Brown [2022] NSWSC 1393 for consideration of whether a stepchild falls within the definition of child.

Instead, the stepchildren in this proceeding made claims as having been a member of the household of which the deceased was a member and wholly, or partly, dependent on her (pursuant to s.57(1)(e)).

Initially this was disputed but the defendant ultimately accepted that the plaintiffs had been members of the same household and there had been partial dependency for basic needs (although they had been primarily living and cared for by their biological mother following their parents’ divorce).

Factors warranting and nature of relationship

Given that the plaintiffs were making their claims based upon eligibility pursuant to s.57(1)(e) the Court had regard to all the circumstances of the case and whether there were factors warranting an application by a plaintiff who is not regarded as a ‘natural object’ of testamentary recognition.

Counsel for the plaintiff submitted that the stepchildren were natural objects of testamentary recognition because there had been a reasonably long period of reasonable closeness, including cohabitation during the formative years (see para [218]).

The deceased had left her estate to her two biological children from her first marriage and her grandchild.  She had provided detailed written reasons for excluding her two stepdaughters whose father she had remained married for 38 years until his death in April 2016.  In those reasons the deceased said the stepchildren had “displayed intolerable behaviour” towards her during the time when their father’s health was deteriorating. She also stated that the stepdaughters had instructed solicitors to “go for” the deceased’s home when their father had died which caused her significant mental stress and anxiety.

The plaintiffs disputed some of those reasons, but ultimately Hallen J placed significance to the written reasons expressing ‘I have also remembered the deceased’s testamentary wishes, as expressed not only by the terms of the 2009 Will, but also by her written statement’ (Paragraph [276]).

Further, despite the plaintiffs having a good relationship with their father the Court found that they had a very limited, if not non-existent relationship with the deceased for at least the 15 years prior to her death and had no contact at all with her after their father’s death.

Financial circumstances and need

The plaintiffs emphasised that they had received no benefit from their father’s estate (as it had passed by survivorship to the deceased) and their father had made a significant contribution to their stepmother’s estate.  However, the Court found that the contribution of the plaintiffs to their stepmother’s estate was minimal.

Individually they established financial need for provision, both having low income, limited assets, small amounts of superannuation and debts.


The stepdaughters’ claim was unsuccessful.

The Court accepted that the plaintiffs’ biological parents had remained their primary caregivers, with full responsibility over financial, material and care related matters.  Hallen J found that the evidence did not demonstrate that the stepmother acted in the capacity of a “close maternal role” or “surrogate mother” to the plaintiffs [266] and went on to say that “I have referred to the lack of involvement in the life of the deceased in the 2000’s, with the only contact being at Jack’s [their father] funeral.  The lack of concern with the deceased, particularly after Jack moved into the nursing home, and then, both before, and after, his death speaks volumes” (Paragraph 267]).

Take away points

Despite a stepchild not falling within the eligibility category of a ‘child’ of the deceased, they can still claim eligibility as a member of household who was partly or wholly dependent on the deceased.

However, the factors warranting a claim, proof of financial need and contribution by a biological parent to the deceased estate are not sufficient on its own.  The plaintiff will need to provide clear and persuasive evidence of the nature and extent of the relationship with the stepparent, including the period prior to death for the Court to be persuaded that it created a moral obligation on the deceased to make testamentary provision.

In Spata v Tumino [2018] NSWCA 17 it was noted that a plaintiff “must therefore establish that there are circumstances that justify regarding [them] as a natural object of testamentary recognition.  Those circumstances must go beyond the bare fact of the familial relationship.  The factors relied on must demonstrate a social, domestic or moral obligation on the testator to make some provision for the claimant” (Paragraph [97]).

This decision is food for thought for a testator, who is recoupling after having children, to consider whether to include the children of their spouse in their will.  Please contact Rebecca Tidswell at Carroll & O’Dea Lawyers on 02 8226 7315 should you wish to discuss this topic in greater detail.

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