As the modern Australian family evolves, so too does the legal battlefield over inheritance. Blended families, where partners bring children from previous relationships, are increasingly common, and so are the inheritance disputes they can sometimes generate. When love and legacy collide, family provision claims under the Succession Act 2006 (NSW) often turn the courtroom into a stage for airing personal grievances, addressing financial need, and questioning fairness.

1. Who Can Claim? The Legal Framework

Under section 57 of the Succession Act 2006 (NSW), a defined group of “eligible persons” may apply to the Court for a family provision order. This includes:

  • Spouses and de facto partners
  • Children (biological or adopted)
  • Former spouses
  • Dependents (e.g. grandchildren or household members)
  • Those in a close personal relationship with the deceased

But being eligible doesn’t guarantee success. Section 59 adds a hurdle: applicants must show there are “factors warranting the making of the application.”

One example is Lodin v Lodin [2017] NSWCA 327, where the Court rejected a former wife’s claim to a substantial estate despite her financial need. The Court made it clear that moral obligation and a meaningful relationship with the deceased are key, not just a tenuous family link or hardship.

2. Blended Family Showdowns: Spouse vs Children

In blended families, competing narratives quickly emerge:

  • Children from the first marriage often feel the estate is “family money” owed to them.
  • The second spouse, especially after years of commitment, expects financial security.

Courts often decide in favour of the surviving spouse, particularly if they’re elderly, reliant on the estate for housing, or have no income.

3. When the Home Is the Estate

Things become more complicated when the estate primarily consists of the family home. Adult children may want their share, but courts are reluctant to force widows from their homes (Camernik v Reholc [2012] NSWSC 1537). Life interests (where the spouse lives in the house until death) can be a solution, but they come with drawbacks, including difficulty funding future aged care costs, property maintenance, and the possibility that the life tenant may seek to surrender the life estate for a financial settlement from the residuary beneficiaries.

4. Stepchildren: A Legal Limbo

Stepchildren, unless legally adopted, aren’t automatic heirs. To claim, they must prove two things:

  • They lived with the deceased
  • They were financially dependent on them

Courts take a nuanced view. In Siddle v Ellis, a stepson’s claim failed because he depended mainly on his biological parent. But in Spata v Tumino [2018] NSWCA 17, indirect dependence through a parent living with the testator was enough.

5. The Quest for “More Than a Fair Share”

Even careful estate planning isn’t bulletproof. Children may seek more than an equal share, especially if one sibling got gifts during the deceased’s lifetime or another is in financial difficulty. Courts can adjust inheritances to ensure “proper provision.”

6. Tools of the Trade: Mutual Wills and Section 95 Releases

To reduce future conflict, some families use:

Contracts to make Mutual Wills: Agreements between partners not to change their wills after one dies. These must be clear and properly documented. However, they don’t prevent the survivor from depleting assets during their lifetime.

Section 95 Releases: These allow a person (usually a child) to waive their right to claim on an estate in future. But the Court won’t approve it unless the release was reasonable, the person surrendering their right to claim had independent legal advice, and the agreement was sensible for the person to enter at that time.

Note, however: a release that seems fair today may be overturned tomorrow if circumstances change, for instance if a modest estate turns out to be a very substantial one.

7. The Court’s Bottom Line: Fair, Not Equal

Judges walk a tightrope between honouring the deceased’s wishes and ensuring dependants are adequately provided for. In Revell v Revell [2016] NSWSC 947, Pembroke J made it clear: “Courts do not rewrite the will of a deceased person simply because it appears to be unfair, unequal or unwise.” Hardship alone doesn’t justify provision. The focus is on “adequate provision,” not a financial reset.

Plan for Peace, Not a Battle

Blended families reflect the complexities of modern life, but they also bring legal complexity. A lack of planning or communication can turn grief into a courtroom war. While the law provides recourse for those left without fair provision, litigation is costly and emotionally draining.

To avoid future problems:

  • Seek legal advice early
  • Use estate planning tools wisely
  • Be clear and transparent with your intentions
  • Review your plans as your family circumstances evolve
  • Ideally involve all parties in the process so that there are no surprises after death

This advice is general in nature. If you or someone you know has estate planning questions, you should contact our qualified Estate Planning team to seek advice specific to your situation. You can contact us by calling us on 9525 8688 or emailing wmd@wmdlaw.com.au.

Refences

Court of Appeal Reins in generous family provision decision in 2017 https://www.lawsociety.com.au/sites/default/files/2018-04/fam%20provision%20from%20LSJ_April%202018.pdf

Lodin v. Lodin [2017] NSWCA 327

Camernik v Reholc [2012] NSWSC 1537

Spata v Tumino [2018] NSWCA 17

Revell v Revell [2016] NSWSC 947

LEAN ON ME – DEPENDENCY IN FAMILY PROVISION CASES

https://13wentworth.com.au/wp-content/uploads/2019/01/Lean-On-Me-Dependency.pdf