The West Australian State Parliament has recently passed the Inheritance (Family and Dependants Provision) Amendment Bill 2011. The Bill was assented to on October 25 2011 and awaits proclamation before inevitably coming into full operation. 

The major change within the bill is the creation of a new class of persons able to claim under the Inheritance (Family and Dependants Provision) Act ("the Act"). This is an Act under which the categories of persons currently able to claim against the estate of a deceased person under the Act in Western Australia are limited to:

  • spouses and de facto partners of the deceased;
  • children of the deceased ;
  • parents of the deceased;
  • grandchildren of the deceased; and
  • former spouses or former de facto partners of the deceased that were being maintained by the deceased at the date of death.

When the amendment to the Act becomes law, stepchildren of a deceased person will be able to challenge the will of their deceased step-parent on the basis that the will does not make adequate provision for their proper maintenance, support, education or advancement in life. To qualify as a "stepchild", a person must be a child of the deceased's spouse or de facto partner and must have been living at the date on which the deceased married the spouse, or entered into a de facto relationship. To be able to make a claim, the stepchild must have been wholly or partly maintained by the deceased immediately before the deceased's death.

The new legislation will also allow for stepchildren of the deceased to make a claim against the deceased's estate if the deceased had received, or was entitled to receive, property from the estate of a parent of the stepchild greater than the amount prescribed in the regulations to the Act.

This means that if you inherit more than the prescribed amount from your partner on their death, and do not make adequate provision for your partner's children, then those stepchildren will be able to make a claim against your estate, regardless of whether you provided maintenance to them prior to your death. Currently, there are no regulations to the Act prescribing the amount; but we anticipate that this will be prescribed before the changes come into effect.  We will provide an update on the position in due course.

Note that the legislation that governs what happens on your death is that which is current at the date of your death and not at the date of the creation of your will. If you have made a will without adequate provision for your stepchildren and you pass away once these take effect changes, your stepchildren may make a claim against your estate and the court has the discretion to override the gifts to others under your will to make provision for your stepchildren.

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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