Blended families are very common in Australia today. Parents with children divorce, re-marry and suddenly acquire stepchildren into their family structure. But what happens if a stepparent passes away and leaves their estate or part of it in their will to their “children”?
Under section 57 of the Succession Act (NSW) only “eligible persons” including a spouse, a de facto or a child can make an application to a court for a family provision order where no adequate provision was made in a deceased’s will for the person’s maintenance, education or advancement in life. Although, a child can automatically make such an application, this does not cover a stepchild.
However, the section does allow a person who was wholly or partly dependent on the deceased and was a member of the deceased’s household at any particular time to apply for such an order and stepchildren are increasingly challenging wills on that basis.
But in Plummer & Anor v Montgomery [2023] NSWSC two stepdaughters failed in their bid to obtain a family provision order following the death of their stepmother. Although they were regarded as eligible persons, having lived with their father and stepmother for a while and being partly dependent on her, they had hardly any contact with her for over 15 years prior to her death and no contact at all after their father’s death. This lack of involvement in the stepmother’s life meant that she had no moral obligation to make provision for them.
The case makes it clear that in addition to being eligible to make a family provision claim and showing financial need, evidence will need to be presented by a stepchild about the depth and continuity of the relationship with the stepparent in order to be successful. Every case depends on its own circumstances!
December 2025