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NSW Family Provision Claims, Legal Fees and Estate Superannuation - Stepchild's Rights?

Discussion in 'Wills and Estate Planning Law Forum' started by Steve500, 10 March 2015.

  1. Steve500

    Steve500 Well-Known Member

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    Q: If one of your Biological-parents marries someone when you are an adult, and the spouse "totally or partially financially" supports you can you qualify as a death-benifit dependant on the deceased superannuation?

    Q: Can someone be classified as an "adult step-child" if one of your biological parents marry someone else when your an adult? And can you make claims on the deceased estate "meaning your step-parent" estate who has passed away?

    Q: Under the Succession Act section 54, can you have your legal fees paid for in mediation or going to court, or do only the surviving spouse and Biological children qualify to get there legal fees paid?
    Q:Can adult step children make a Family provision claim, if the deceased only entered into a relationship with one of your biological parents when you were an adult?
     
  2. Steve500

    Steve500 Well-Known Member

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    Do you qualify as a step-child of the deceased, if one f your "Biological parents" meets and forms a relationship and was married to the deceased, if all this happened once you were an adult-only. Not when if they married when you a child, or entered a de-facto relationship.

    Example: Say your mother meets someone, when your aged 25, and they marry at age 28, and your biological mother's husband has been financially supporting you as an adult from aged 25 until his death at aged 30. Does that mean you are defined as a step-child, or just a death benefit dependant?
    Anyone know about the family provision act and what defines a step-child especially in adulthood and if your Biological parent marries someone else in your adult life, if that makes them your step-parent if they were financially supporting you?
    Is that meeting a definition of intent to create legal-relations with you, and claiming on there estate.
     
  3. Sophea

    Sophea Well-Known Member

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    Hi Steve500,

    The following persons may be eligible to bring a family provision application:

    1. wife or husband;
    2. person living in a de-facto relationship with the deceased person;
    3. children, regardless of age;
    4. former husband or wife;
    5. person wholly or partly dependent on the deceased person; or member of the deceased person’s household at any time; and
    6. person living in a “close personal relationship” with the deceased person.

    The definition of children is not limited to natural or legitimate children, they include:
    1. children of a marriage (e.g. children of the other spouse in blended families in many circumstances). These may even be children of a former spouse in a previous marriage;
    2. children of a domestic relationship but only if the deceased was in the relationship at the time of death;
    3. adopted children; and
    4. children born out of wedlock.

    Once you have established standing to bring an application you may then need to establish dependancy on the deceased in order to convince the court that the deceased should have but failed to adequately provide for you in their estate. A family provision application involves much more than simply proving your relationship with the deceased there are a range of factors a court will consider in order to determine whether your inheritance or lack there of constitutes sufficient provision for you by the deceased in all the circumstances.
     
  4. Sophea

    Sophea Well-Known Member

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    Section 54 of the Succession Act prescribes parties entitled to view a will, nothing to do with legal fees. Section 99 of the act provides that the court can make orders that legal costs must be paid from the estate.
     
  5. Steve500

    Steve500 Well-Known Member

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    Thank you Sophia, good summary.
     

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