02 9222 8000


Claims By Stepchildren Against Deceased Estates

  • Dispute Resolution, Family Law, Wills and Estates Law
  • Christian Tager
  • No Comments
  • May 29, 2015

Claims By Stepchildren Against Deceased Estates

A stepchild of a deceased person can be an eligible person to make a claim for provision from the step parent’s estate pursuant to Section 57 (1)(e) of the New South Wales Succession Act 2006.

However, the step child must have been at any particular time wholly or partly dependent upon the deceased person and at that particular time or at any other time a member of the household of which the deceased person was a member.

In addition to the above matters, a stepchild must also satisfy the Court pursuant to Section 59 (1)(b) as to whether, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application. What is generally regarded as the meaning of this section is factors which, when added to the facts which render the applicant an eligible person, give him, or her the status of a person who would be generally regarded as a “natural object of testamentary recognition by the deceased”.

Case Study – Claim by estranged stepdaughter who only lived in the same household as her stepmother for a short period of time  resulted in modest award for provision.

In the case of Doshen v. Pedisich [2013] NSWSC 1507 (17 October 2013) Justice Hallen dealt with a claim by a stepdaughter who had a hostile relationship with her late father and his second wife (her stepmother) for most of her adult life. The child in this case was separated from her father at the age of 6 after he divorced her mother in Croatia in 1957 and then emigrated to Australia.   At the age of 16 she took up his invitation to emigrate to Australia and live with him and his second wife.   On arrival in Australia in 1965 her father secured work for his daughter and she lived in their residence for about 13 months.

Both her late father and her stepmother in sworn declarations prior to their deaths in 2002 and 2011 respectively, stated that they did not want their daughter/stepdaughter to receive any monies from their estates and related this back to incidents that occurred in 1965 – 1968 when the applicant was a teenager and ran away from their home after becoming pregnant and  bringing shame to the family.

In the statutory declaration sworn by the applicant’s father, he claimed that his daughter stole money from him, tried to poison him and his second wife, disappeared for 3 years with her boyfriend, returning pregnant and wanting his consent to their marriage, that she left her child with her husband and then went off with another man, and that he had not then heard from her for over 36 years.   He claimed that she only wanted to speak to him when he was 75 years of age and that he was not interested in her overtures at  that point.

On the father’s death in 2002 all of his estate passed to his second wife and his daughter made no claim for provision.  The estate at that point was comprised mostly of the father and stepmother’s jointly owned home. Justice Hallen noted that the daughter’s prospects of successfully making any claim against her father’s estate in 2002 were weak.

In 2011 the stepmother died leaving her estate in equal shares to her niece and her late husband’s niece’s son, both of whom lived overseas. Nothing was left to her 65 year old stepdaughter.  The estate had a value of approximately $817,000.

The stepdaughter brought a claim on the basis that she was a member of the deceased’s household for a 13 month period between 1965 and 1966 when she first came out to Australia from Croatia to live with her father and stepmother at the age of 16 years.   She claimed that during the period she was financially dependent on her father and stepmother and continued to receive financial assistance from them after she left their home for a short period thereafter whilst living with her father’s brother.

Although these claims of dependency were disputed by the executors of the estate, Hallen J determined in the stepdaughter’s favour on the issue of her eligibility to make this claim.

In regards to the second threshold question under Section 59 (1)(b) of the Succession Act as to whether there  were factors which warranted the making of the application, His Honour ruled in favour of the stepdaughter on the basis that the very fact that her stepmother and her father set out to specifically exclude their daughter/stepdaughter in their Wills indicated that she was a person who would be regarded as a natural object of testamentary recognition by the deceased.   His Honour further noted that the applicant did not make any claim against her late father’s estate and the applicant did endeavour to maintain a relationship with both her father and her stepmother.

In considering the issue of quantum His Honour noted that the stepdaughter’s financial position was certainly not dire.  She was 65 years of age and retired.   She and her husband owned a house in Castle Hill worth approximately $900,000 which had a mortgage of $170,000. The husband owned taxi plates worth $350,000 and they had an income of $25,000 per annum supplemented by a part pension/carer’s allowance. They had no superannuation and the stepdaughter required extensive dental work in the sum of $60,000 and substantial repairs to their home in the sum of $135,000.

The position of the two beneficiaries of the estate living in Croatia was modest by comparison.

In relation to the estrangement issue, Justice Hallen noted that the incident that led to the estrangement occurred over 40 years prior to the statutory declarations that were sworn by her father and stepmother.  He also was of the view that the stepdaughter had made repeated efforts to have some sort of relationship with both her father and her stepmother but these entreaties were rejected or met with hostility.  Accordingly the lengthy estrangement and hostility did not disentitle her from making any claim against her stepmother’s estate.

Justice Hallen awarded the stepdaughter $75,000 plus her costs of the proceedings.  His Honour reasoned that the sum of $75,000 would cover her urgent need for dental repair and allow her to upgrade her motor vehicle.  He further indicated that the hostility between the applicant and her stepmother restrained amplitude in awarding any additional monies to cover some of her other needs such as major repairs to her home.

Stepchildren who never live in their step-parents household or were otherwise never dependent upon them.

In the above case study, if the stepdaughter had never been part of her stepmother’s household and was never dependent upon her, she would not have been eligible to make a claim irrespective of the fact that her stepmother would have received all of her father’s estate.   It is therefore very important in those circumstances for the child to bring a claim against their parent’s estate at the time of their death.