Western Australia is still unsure which Stepchildren should be able to claim under Family Provision Legislation
On 25 October 2011 the Inheritance (Family and Dependants Provision) Amendment Act 2011 (WA) ("the Amendment Act"), was passed by both houses of State Parliament. The main provisions of the Amendment Act are unlikely to come into force until 1 July 2012 as debate continues concerning the need for further reform.
Substantive amendments to the Inheritance (Family and Dependants Provision) Act 1972 (WA) ("the Act") were originally proposed in 1997. A significant stimulus for the reform continues to be the inequity arising out of the present list of eligible claimants. According to section 7 of the Act, eligible applicants presently only include:
- Spouses and de facto spouses;
- Former spouses maintained by the deceased;
- Children, including unborn children;
- Grandchildren maintained by the deceased or whose parent died before the deceased; and
- Parents.
The Amendment Act proposes to add to the above list by allowing stepchildren, in certain circumstances, to make a claim against their step-parent's estate.
"Stepchild" is defined as a person who is not a child of the deceased, but is a child of the deceased's spouse or de facto partner (assuming the de facto partner is one in whose favour the Court can make an order under the Act). Also, the stepchild must have been living at the date on which the deceased married the spouse or entered into the de facto relationship with their de facto partner.
The Amendment Act proposes that a stepchild can only make an application for provision out of a step-parent's estate if:
- The stepchild was being (or was entitled to be) maintained wholly or partly by the deceased immediately prior to the deceased's death; or
- The deceased had received (or was entitled to receive) property with a value greater than the prescribed amount (which is yet to be determined) from the estate of a natural parent of the stepchild.
Whilst the above amendment improves the situation for stepchildren in Western Australia, there are still some problems. For example, what happens in circumstances where:
- the relationship between the deceased and the stepchild's natural parent breaks down before the date of death, but the relationship between the deceased and the step-child continues?
- the step-child's natural parent dies before the deceased person but the deceased person's marriage to the natural parent continued until the natural parent died?
- the deceased person remarries after the death of the stepchild's natural parent but the deceased person's marriage to the natural parent continued until the natural parent died?
Pursuant to the present Amendment Act, a stepchild who finds themselves in any of the above situations will not be able to make a claim against their step-parent's estate.
The Government is now considering whether the definition of "spouse" should be amended to include a "former spouse", or whether the definition of "stepchild" should be amended to be consistent with the Queensland succession legislation. The Queensland legislation declares that a stepchild's eligibility to claim against a step-parent's estate does not disappear merely because of the circumstances outlined in the examples above. What is relevant, for the purpose of the Queensland legislation, is an ongoing relationship between the stepchild and the deceased.
A similar provision in the WA legislation is required to avoid inequity. However, if further amendments are to be made to the Act then a new Bill will need to be introduced to State Parliament in the Autumn Session of 2012. Assuming a Proclamation occurs on 1 July 2012, it will possibly be another 4 months until any stepchildren are able to make a claim against a step-parent's estate.
The Amendment Act also proposes amendments concerning the name of the Act, undisclosed property, interim orders and evidence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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