Can a Step Child Make a Family Provision Claim in NSW?

Pursuant to section 57(1) of the Succession Act 2006 (NSW) (“the Act”), only certain “eligible” people can make a family provision claim seeking provision or further provision from a deceased person's estate. Eligible persons include:

“(a) a person who was the spouse of the deceased person at the time of the deceased person's death,

(b) a person with whom the deceas

ed person was living in a de facto relationship at the time of the deceased person's death,

(c) a child of the deceased person,

(d) a former spouse of the deceased person,

(e) a person--

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death.”

Pursuant to subrule (2) “In this section, a reference to a child of a deceased person includes, if the deceased person was in a de facto relationship, or a domestic relationship within the meaning of the Property (Relationships) Act 1984, at the time of death, a reference to the following--

(a) a child born as a result of sexual relations between the parties to the relationship,

(b) a child adopted by both parties,

(c) in the case of a de facto relationship between a man and a woman, a child of the woman of whom the man is the father or of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father (except where the presumption is rebutted),

(d) in the case of a de facto relationship between 2 women, a child of whom both of those women are presumed to be parents by virtue of the Status of Children Act 1996,

(e) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998”.

In all cases, the applicant must also show that the deceased’s will or intestacy failed to make “adequate provision” for their proper maintenance, education or advancement in life. If the claimant’s eligibility is based only on being a former spouse (57(1)(d)), dependent household member (57(1)(e)), or close personal relationship (57(1)(f)), the extended categories, the Court additionally requires proof of “factors which warrant” the making of the claim (see section 59(1) of the Act).

Stepchildren as Eligible Persons under the Act

Notably, stepchildren are not expressly listed as eligible persons in the Act. The Act uses the term “child of the deceased,” which by its ordinary meaning, refers to a biological or legally adopted child, it does not automatically include stepchildren. In fact, the Act contains no definition of “stepchild,” and courts have confirmed that a stepchild is not treated as a “child” for these purposes (especially once the marriage linking the step-parent and natural parent has ended). For example, in Brown v Brown [2022] NSWSC 1393 (“Brown”), the NSW Supreme Court held that the statutory definition of “child” could not be interpreted to include a stepchild, particularly where the step-parent and the stepchild’s biological parent were long divorced. The Court in Brown noted that the divorce of the natural parent and stepparent generally terminates the step-relationship, consistent with other case law. The court in Brown found the stepson eligible to make a claim for other reasons, namely due to the nature of the relationship with the deceased, the Court ultimately dismissed the case as it did not find that the stepson was not adequately provided for in the deceased’s will, especially in considering the circumstances of the competing claim of the biological son.

However, stepchildren can still be eligible to make a family provision claim if they satisfy the criteria in section 57(1)(e) of the Act essentially qualifying as a dependent member of the deceased’s household. In practical terms, a stepchild “who was, at any particular time, wholly or partly dependent on the deceased person” and “was, at that time or at any other time, a member of the household of which the deceased was a member” is eligible to make a claim. In short, a stepchild is not automatically eligible by virtue of the relationship alone; they must show they are or were a dependent and a member of the deceased’s household in order to have standing to claim.

If a stepchild was formally adopted by the step-parent, they become the legal child of the deceased and thus qualify under the “child” category (with the same rights as a natural child).

Dependency and Household Conditions for Stepchildren

Dependency in this context means the stepchild relied on the deceased for financial support, housing, or other essential care. The dependency need not be total; partial support may be sufficient, so long as it was more than trivial. Courts have given “dependent” a broad interpretation, it includes anyone who would naturally rely on the deceased for necessary or reasonable support (financial or even emotional) in the circumstances. For instance, a stepchild who was a minor living with a stepparent would typically be at least partly financially dependent on that stepparent (for food, shelter, education, etc.), even if another parent also contributed. The household membership requirement means the stepchild must have been part of the deceased’s household (living under the same roof in a domestic arrangement). This usually occurs during the period when the stepchild’s biological parent and the stepparent were together and raising the child. Notably, the Act allows that the person need only have been a household member “at that time or at any other time”, so the co-residence could have been in the past (e.g. during childhood) even if the stepchild was not living with the deceased at the time of the deceased’s death.

In Doshen v Pedisich [2013] NSWSC 1507, the Court found a stepdaughter was an eligible person because she had been partly dependent on her stepfather during her teen years, even though the period of co-residence was only about 15 months. She lived with her stepfather (the deceased) and mother from age 16 for just over a year, during which the stepparent provided for all her day-to-day needs; the stepdaughter then moved out, but the parents continued sending her money for a time. This limited period of support was enough to establish dependency and household membership, satisfying s 57(1)(e) and the Court proceeded to award her provision out of the estate. Likewise, in Evans v Levy [2011] NSWCA 125, a stepdaughter who had lived with and been supported by her step-parent from age 12 until 27 was held to be an eligible person under the equivalent provision in the earlier Act. These cases illustrate that a period of cohabitation and support during the stepchild’s formative years may meet the threshold for eligibility. Even shorter or intermittent periods of dependence may suffice if they are more than minimal. On the other hand, purely nominal or trivial support (or a relationship of convenience rather than necessity) might not qualify as true dependency in this context.

It’s important to emphasize that simply being the stepchild of the deceased, without evidence of actual dependency or household membership, is not enough. For example, an adult stepchild who never lived with or received support from the deceased would not be an eligible person under NSW law, whereas a stepchild who grew up in the deceased’s household and was cared for by them may be eligible to claim. Additionally, if the stepparent’s relationship with the natural parent ended long ago (e.g. divorce or separation) and the stepchild had not been part of the stepparent’s household or dependent on them since, it may be difficult to establish factors warranting.

“Factors Warranting” and Moral Obligation

When a stepchild qualifies as an eligible person only by virtue of being a dependent household member (or other extended category), the Act imposes an additional hurdle: the Court must be satisfied that “having regard to all the circumstances of the case ... there are factors which warrant the making of the application”. This requirement, found in s 59(1)(b) of the Act, essentially asks whether there are circumstances that justify treating the applicant as a deserving claimant on the deceased’s estate. In other words, the stepchild must show that their relationship with the deceased, or the circumstances of the case, create a moral or ethical obligation for the deceased to have made provision for them. Courts often phrase this as determining whether the person is a “natural object of testamentary recognition” of the deceased, a term typically applied to those for whom the deceased could reasonably be expected to provide (like close family members). Since a stepchild is not a presumptive natural object (unlike a biological child or spouse), the quality of the relationship and the claimant’s needs are important when proving “factors warranting”.

Relevant factors can include: the length and closeness of the stepchild–stepparent relationship, the extent to which the deceased assumed a parental role, any contributions or care provided by the stepchild, any promises or expectations of inheritance, the stepchild’s financial need, and any other circumstances that would make it fair in the community’s eyes for the stepchild to receive provision. Simply showing financial need or that the stepchild was related alone may not be sufficient.

If the Court is satisfied that the stepchild is an eligible person and that warranting factors exist, it will then consider whether the provision (if any) made for the stepchild in the will or on intestacy was inadequate, and if so, may order appropriate provision from the estate. In considering what (if any) provision to make, the Court weighs many factors (listed in s 60 of the Act) such as the claimant’s financial resources and needs, the size of the estate, and the nature of the relationship. Ultimately, if a stepchild meets the eligibility criteria and demonstrates a genuine obligation for provision, the Court has discretion to award a share of the estate for their maintenance, education or advancement in life.

Case Examples of Stepchildren in Family Provision Claims

Several cases illustrate how courts have handled family provision claims by stepchildren in NSW:

• Evans v Levy [2011] NSWCA 125: A stepdaughter was found to be an eligible person under the (now repealed) Family Provision Act 1982 provision equivalent to s 57(1)(e). She had lived with her mother and stepfather from age 12 until she married at 27, during which time she was substantially dependent on her stepfather. She and her husband even resided with the deceased briefly after marriage. However, despite qualifying as eligible, her claim was ultimately denied because the Court concluded she was not in sufficient financial need to justify provision from the estate. This case shows that eligibility alone doesn’t guarantee success; the Court will also assess the merits (the Plaintiff’s “need’ and moral claim) before granting provision.

• Doshen v Pedisich [2013] NSWSC 1507: The Court in this case clarified the meaning of “dependent” and held that a stepchild could qualify based on relatively short-term support. The stepdaughter had immigrated to Australia at 16 and lived with her father and stepmother (the deceased) for about 15 months, during which she was wholly dependent on them for all necessities. Even after she moved out, the deceased provided some financial support. The court found she was at least partly dependent for that period and thus eligible. The Court said that:

  “The word dependent connotes a person who relies upon support of another, financial and/or emotional… the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.” 

  There were factors warranting the application, and the provision made for her in the will was deemed inadequate, so the stepdaughter succeeded in obtaining a lump sum of $75,000 from the estate.

  
  

In summary, a stepchild can make a family provision claim in NSW, but only if strict conditions are met. The Act does not treat stepchildren the same as biological or adopted children of the deceased. A stepchild who wishes to contest a will must fit within the Act’s “eligible person” categories, by proving they were “at any particular time, wholly or partly dependent on 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”. Even then, the stepchild must demonstrate a strong case that the deceased had a moral duty to provide for them, beyond just the stepfamily tie (factors warranting). Each claim will turn on its facts, including the closeness of the relationship, the duration of support, the reason the stepchild was left out of the will, and the stepchild’s current needs.

Katherine Guilfoyle