Children: Biological, Adopted and Step. Who do I provide for?

With increasing rates of divorce and re-marriage, blended families are becoming common in modern society. Clients with blended families may need guidance with respect to who it is appropriate to make provision for in their Wills, particularly with respect to children and stepchildren.

Who is included in the definition of children?

The definition of children includes biological children. It also includes adopted children; section 75(1)(a) of the Adoption Act 1994 provides that the relationship between adopted child and adopting parent is that of parent and child. It is worth noting that a sperm or ovum donor is not the parent of a child (who is the result of the sperm or ovum donation) pursuant to the Artificial Conception Act 1985. Any person falling within the definition of “child” is a potential claimant against their deceased parent’s estate. 

Who is included in the definition of stepchildren and when can a stepchild make a claim?

A stepchild is a person who is not a child of the deceased client, but was a child of the deceased client’s spouse or de facto partner, who was alive at the time the deceased client married his or her parent or entered into that de facto relationship: section 4 of the Family Provision Act 1972.

Before the Inheritance (Family and Dependants Provision) Amendment Act 2011, stepchildren had no right to inherit or claim from an estate. The recent amendments imposed, under section 7(1)(ea) and (eb) of the Family Provision Act 1972, state that a stepchild can make a claim when:

  • that stepchild was being (or was entitled to be) maintained wholly or partly by the deceased client immediately before the deceased client’s death; and/or
  • if the deceased client received (or was entitled to receive) property from the stepchild’s parent’s estate, provided the value of the property at the time of the parent’s death is greater than $460,000. This is intended to protect a child whose parent left, for example, the house to his or her spouse or de facto, who then leaves it to his or her own biological children (and not to his or her stepchildren). 

Accordingly, even though a stepchild may not be defined as a ‘child’ of the client, the stepchild still has rights to make a claim against the client’s estate in certain circumstances.

Why is this important?

As highlighted in the recent and highly publicised case where illegitimate daughter Olivia Mead contested the Will of her mining magnate father Michael Wright, making appropriate provision is a crucial consideration in the estate planning process.

If a client does not turn his or her mind to making adequate provision for a stepchild, the time and money injected into making a Will could be a waste of resources and, in fact, require more time and money to be expended by their loved ones if a stepchild makes a claim against the estate.

The Court has the power to reallocate gifts in a Will originally made to other people to a stepchild in order to fulfil his or her claim. If this happens, obviously the client’s wishes are not being fulfilled and are dictated by the Court.

Further, a Will that does not provide for the appropriate people may cause heartache to a client’s loved ones. If a person who believes that they have not been adequately provided for makes a claim, it is the deceased’s family who must deal with that claim, seek legal advice, attend mediations, arbitrations and possibly Court hearings.

It is critical that a Will is constructed properly in order to avoid conflict and allow a deceased’s family to mourn the loss of a loved one, instead of being forced to fight over an estate.

How can I help my clients?

If you believe that this issue may be applicable to your clients please do not hesitate to contact Thomas Henn on 6555 3966 or mail@willpowerlegal.com.au to discuss the matter further. Thomas would also be pleased to meet with your clients to discuss the matter personally.