Can the rules of intestacy be contested by a step-child?

Written by Terry Johansson | 25th July 2014

A step-child may, in some circumstances, be able to contest the division of the Estate under the rules of intestacy and seek provision for themselves by making a ‘Family Provision’ claim.

A potential claim against the estate will only arise if:

a) The deceased died whilst domiciled in the State in which the law applies;
b) You make the claim within a certain period of time from the date of the granting of the Letters of Administration. This time period is usually between six (6) and nine (9) months, although in NSW the time limit expires 12 months from the date of death;
c) You are eligible to make a claim against the estate; and
d) You can prove that you failed to receive reasonable financial provision as a result of the rules of intestacy.

Usually the issue of domicile will be quite straightforward. The general rule is that the deceased is considered to be domiciled in the State in which he / she had his permanent home and where he / she intended to remain living indefinitely. If there is any dispute as to the deceased’s domicile, a court will need to make a ruling on the issue.

It is very important that a claim against the estate is lodged in court within the prescribed time period.

If you fail to file your application within the time limit, your application will not be heard without the court first providing permission, called ‘leave’, for the application to proceed. If the court refuses to hear the application filed out-of-time, then unfortunately you will have lost your opportunity to make a family provision claim.

You should obtain legal advice about a potential claim and have a solicitor represent you as you will need to go to court. An expert lawyer can provide you with initial advice on the likely court ruling and obtain and provide evidence on your behalf in the court proceedings.

Join the Discussion

International Issues

More info on Wills
& Inheritance?

More info

LGBT RightsWhere do you stand?

More info

Making a Will

Find out what’s involved

More info