Why “Child” Under Section 57 Does Not Automatically Include a Stepchild

Section 57 of the Succession Act 2006 (NSW) sets out the categories of “eligible persons” who may bring a family provision claim in NSW, covered in more detail in our guide to contesting a will. Paragraph (c) lists “a child of the deceased person” as one of those categories. The Act as a whole, available in full on the NSW legislation website, governs both family provision claims and how estates are distributed on intestacy.

The Act does not define the word “stepchild” anywhere, and courts have confirmed that a stepchild does not fall within the ordinary meaning of “child” for this purpose. This means a stepchild cannot rely on paragraph (c) just by pointing to the relationship itself, no matter how long it lasted or how close it was.

This is not unique to family provision law. Under section 5 of the Property (Relationships) Act 1984 (NSW), the definition of a “child” of a domestic relationship is similarly limited to specific categories, such as a child born of the relationship or a child adopted by both parties. A stepchild or foster child does not fit within that definition either, which reflects a consistent approach across related NSW legislation.

The Pathway That Does Work: Section 57(1)(e)

Being excluded from the “child” category is not the end of the road. The full text of section 57 sets out a separate category that most stepchildren rely on instead, and it has two parts that must both be satisfied.

Member of the Household

The first requirement is that the person was, at any time, a member of the household of which the deceased was also a member. This is a factual question. A stepchild who grew up in the same home as their stepparent will usually satisfy this limb without much difficulty, even if they later moved out or the household later separated.

Wholly or Partly Dependent

The second requirement is that the person was, at any particular time, wholly or partly dependent on the deceased. Dependency can be financial, and it does not need to exist at the date of death. A stepchild who was financially supported as a child, even decades earlier, may still satisfy this limb.

Both limbs must be met, but not necessarily at the same time. A stepchild who lived in the household as a child and was financially dependent during that period can generally satisfy section 57(1)(e), even as an adult bringing the claim many years later.

The Extra Hurdle: Factors Warranting the Application

Qualifying under section 57(1)(e) is not the final test. Because this category sits alongside former spouses and close personal relationships rather than spouses, de facto partners, or children, an additional threshold applies before the court will even consider the merits of the claim.

Under section 59(1)(b) of the Succession Act 2006 (NSW), a person who is only eligible under paragraph (d), (e), or (f) of section 57 must also satisfy the court that, having regard to all the circumstances of the case, there are factors which warrant the making of the application. Spouses, de facto partners, and biological or adopted children do not need to clear this extra hurdle. Stepchildren relying on section 57(1)(e) do.

This threshold exists because the household and dependency category is broader and less clearly defined than the primary relationship categories. It gives the court a filter to weed out claims where the connection to the deceased, while technically meeting the household and dependency test, does not carry enough weight to justify disturbing the will.

What Courts Consider When Assessing a Stepchild’s Claim

Once eligibility is established, the court moves on to the substantive question of whether adequate provision was made. Several factors from section 60 of the Succession Act 2006 (NSW) are particularly relevant to stepchildren specifically.

• The nature and duration of the relationship, including how long the stepchild lived in the household and whether the closeness continued into adulthood
• Any contribution the stepchild made to the deceased’s welfare, property, or business during the relationship
• The financial circumstances of the stepchild at the time of the hearing, including their income, assets, and any disability
• The size of the estate and the competing claims of other beneficiaries, including the deceased’s own biological or adopted children
• Any written statement by the deceased explaining why the stepchild was excluded, which the court can take into account alongside the other evidence

Case Example: Plummer & Anor v Montgomery

A useful illustration comes from Plummer & Anor v Montgomery [2023] NSWSC 175, a NSW Supreme Court decision involving two adult stepdaughters who brought a claim against their late stepmother’s estate.

The stepdaughters could not rely on the “child” category, so their claim proceeded under section 57(1)(e) as members of the deceased’s household who had been dependent on her. The deceased had left a written statement explaining that she excluded the stepdaughters because of their conduct towards her and her late husband. 

The court gave weight to that statement alongside the evidence of the parties’ actual relationship, including how often they saw each other in the years before her death, and the claim was ultimately unsuccessful.

The case shows that clearing the eligibility threshold under section 57(1)(e) is only the first step. A stepchild still needs to satisfy the court, on the facts, that the closeness and dependency of the relationship justify a family provision order, rather than simply relying on having once lived in the same household decades earlier.

More: What Is Notional Estate in NSW and How Does It Affect Family Claims?

What Evidence Helps a Stepchild’s Claim

Building a claim under section 57(1)(e) generally requires more detailed evidence than a claim by a biological child, since eligibility itself must be proven rather than assumed.

• Evidence of household membership, such as school records, old addresses, or family photographs showing the stepchild living with the deceased
• Evidence of financial or practical dependency, including who paid for education, medical costs, or day-to-day living expenses
• Evidence of the ongoing relationship, such as correspondence, visits, or care provided in the deceased’s later years
• Financial records for the stepchild’s current circumstances, since the court weighs the applicant’s present needs against the size of the estate
• Any written statement left by the deceased, whether it supports or works against the claim, since the court will consider it either way

When to Get Advice Early

Time limits apply regardless of which eligibility category a claim relies on. A family provision claim must generally be filed within 12 months of the date of death, and stepchildren should not assume the additional eligibility hurdle gives them more time to decide whether to act.

Legal Aid NSW’s guidance on family provision claims confirms this 12-month deadline applies across all eligible person categories, though the Court retains discretion to extend it in limited circumstances where sufficient cause is shown.

Because section 57(1)(e) claims require proof of household membership and dependency, gathering evidence early matters more for stepchildren than for claimants who qualify automatically. Waiting too long can mean key witnesses, records, or documents are no longer available, and a court asked to extend a missed deadline will scrutinise the delay closely.

More: What Is a Deed of Family Arrangement in NSW and How Does It Resolve Estate Disputes?

How Empower Probate Lawyers Can Help

Stepchildren’s claims sit in one of the more technical corners of family provision law, since eligibility itself has to be argued before the merits are even considered. Getting the section 57(1)(e) and section 59(1)(b) analysis wrong at the outset can derail a genuinely strong claim before it is heard.

We advise stepchildren, executors, and beneficiaries on family provision claims and disputing a will across NSW, including blended family estates where eligibility is contested before the merits are even reached. Where a matter needs to proceed to the Supreme Court, we act for claimants and executors through negotiation, mediation, and litigation where necessary.

Call 1300 481 161 for an initial consultation. Specialist advice. Free initial consultation. Deferred fee arrangements are available in eligible cases.

Frequently Asked Questions

Can a stepchild contest a will in NSW automatically?

No. A stepchild is not automatically an eligible person in NSW under section 57 of the Succession Act 2006 (NSW). They must instead show they were a member of the deceased’s household and were wholly or partly dependent on the deceased at some point.

Does it matter if the stepchild was never legally adopted?

Yes. Without legal adoption, a stepchild does not fall within the “child” category under section 57(1)(c). Adoption creates a legal parent-child relationship for these purposes, whereas an unadopted stepchild must rely on the household and dependency pathway instead.

What is the “factors warranting the application” test?

It is an additional threshold under section 59(1)(b) that applies specifically to people who are only eligible as a former spouse, a dependent household member or grandchild, or a person in a close personal relationship. The court must be satisfied there are factors warranting the claim before considering the merits.

Can an adult stepchild who moved out decades ago still make a claim?

Potentially, yes. Household membership and dependency do not need to exist at the date of death. If the stepchild lived with the deceased and was dependent on them at some point, even many years earlier, they may still satisfy section 57(1)(e).

Does a written statement excluding a stepchild end the claim automatically?

No. A written statement explaining the deceased’s reasons is one piece of evidence the court considers, but it is not automatically decisive. In Plummer & Anor v Montgomery [2023] NSWSC 175, the court weighed the statement alongside evidence of the actual relationship.

How long does a stepchild have to bring a claim?

Generally, 12 months from the date of death, the same time limit that applies to other family provision claimants. This deadline is strict, so stepchildren should seek advice early given the additional evidence their claim usually requires.