Contesting an Estate in a Blended Family

Article Emily Hancock 03 November 2023

When it comes to blended families, distribution of a deceased’s estate can become fraught with tension.  Even when families live together harmoniously, on the death of a person in a blended family, conflicts can arise over the allocation of the deceased’s assets.

A blended family typically consists of a married couple, or de-facto couple, who have children from previous relationships.  It can be difficult to establish the fairest way to ensure all family members are provided for, including spouse, children from previous relationships and stepchildren. Certain people, if they disagree with the distribution of an estate, whether that distribution was in accordance with the terms of a will or the laws of intestacy (if the deceased did not leave a will), can challenge the estate.

Contesting an estate, via a family provision claim, can be a complex and emotionally charged process that presents unique challenges.  

In Australia, only certain categories of people have an automatic right to contest an estate. The Succession Act 2006 includes a list of eligible persons who can make a family provision claim. Amongst those eligible persons are a spouse and child (biological or adopted). There may be other persons, such as stepchildren or an ex-spouse, who can also bring a family provision claim. Unlike a spouse and biological or adopted children, stepchildren and an ex-spouse do not automatically qualify as eligible persons to contest an estate.  They must also establish additional matters in order to qualify and bring a claim.

Even when a person has established their eligibility to bring a family provision claim, that does not automatically mean they are entitled to provision, or further provision, from the deceased’s estate. The court also needs to be satisfied that the deceased did not leave sufficient provision for the proper maintenance, education and advancement for the person bringing the claim. In determining these matters, the Court will consider a variety of matters such as, but not limited to, the extent of the deceased’s estate, the financial needs of the person bringing the claim and the needs of the other beneficiaries of the deceased’s estate. 

To address the issues specific to blended families, it is crucial to consult with an experienced estate solicitor who understands the legal complexities and can provide guidance tailored to your specific situation.   They can help you navigate the legal process, advise on the strength of your case, and work to reach a fair resolution in your blended family estate dispute. 

The contents of this article do not constitute legal advice. For more information on challenging a Will in a blended family, contact the experienced team at CDQ on ph: 02 8556 0130.  Our Partner, Nicolas Moore, is an Accredited Specialist in Wills and Estates law with many years of experience and a comprehensive understanding of the legislation involved.