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step-child contesting step-parents estate litigation step-children will claim queensland inheritance lawyers brisbane sunshine coast

Can a step-child contest their step-parent’s Will?

We sometimes see issues arise in blended families, where someone chooses to leave the entire or majority of their estate to their new spouse or biological children – to the exclusion of their step-children.

When a step-parent passes away, the step-children may feel that their step-parent had a moral obligation to provide for them.

Feelings of jealousy or resentment can come from step-children when they have ‘missed out’ on an inheritance – especially if their step-parent benefited previously from the estate of their biological parent.

Am I an eligible person to contest my step-parent’s Will?

In Queensland, the following will be considered eligible:

  1. spouses (including de facto souses);
  2. children (including step-children and adopted children); or
  3. people financially dependent on the deceased at the time of their death.

Stepchildren are treated as the same as biological children for the purpose of eligibility to make a claim on an estate.

Therefore, if your biological parent’s estate was left to your step-parent and your step-parent did not make provision for you in their Will, you may be entitled to bring a family provision application against their estate.

Who is considered a step-child for the purposes of making a claim?

Before making a claim, it is important to determine if you fit the definition of a ‘step-child’.

For the purposes of making a claim against an estate, the meaning of stepchild is found under section 40A of the Succession Act 1981 (Qld) (the Act).

A person is a ‘step-child’ of a deceased person if:

  1. the person is the child of a spouse (including de facto spouse) of the deceased person; and 
  2. a relationship of step-child and step-parent between the person and the deceased person did not end.

What ends a step-child/step-parent relationship?

The relationship of step-child and step-parent ends on:

  1. the divorce of the deceased person and the step-child’s parent; or
  2. the termination of the civil partnership between the deceased person and the step-child’s parent; or
  3. the end of the de facto relationship between the deceased person and the step-child’s parent (i.e., they have separated).

Do I stop being a step-child once my biological parent dies?

No – the relationship of a step-child and their step‑parent does not stop, simply because the step-child’s biological parent died before the step-parent (so long as the relationship between their biological parent and step-parent did not end before their death).

Do I stop being a step-child if my step-parent has since re-married or re-partnered?

No – the step-child/step-parent relationship also remains, even if the step-parent remarries after the death of the step-child’s biological parent (again, so long as the step-parent and biological parent were still married or in a de facto or civil partnership at the time of the biological parent’s death).

What factors are considered when contesting my step-parent’s Will?

A step-child can contest their step-parent’s Will in the same manner they would any other Will for which they were eligible to do so.

An application for provision is not a chance to rewrite the Will. It is based on the applicant’s need for provision from the deceased’s estate for their maintenance and support.

What is deemed adequate provision, with depend on several factors including:

  • the ability of the applicant to meet their own financial responsibilities;
  • the amount which is necessary for their maintenance and survival;
  • the size of the estate;
  • any competing claims upon the estate;
  • the standard of living of the applicant;
  • the relationship between the applicant and the deceased;
  • the manner in which the applicant conducted themselves during the deceased’s life; and
  • the deceased’s wishes.

What if my step-parent died intestate (without a Will)?

A person dies ‘intestate’ if they have died without having left a valid Will.

If someone dies intestate an application for Letters of Administration on intestacy may be brought to the Court by a person with priority to be appointed as an Administrator to take control and administer the estate.

Under Part 3 of the Act  dictates the specific order of estate distribution on intestacy. Generally speaking, the estate will be distributed to the closest next of kin to the deceased – first being the spouse and children of the deceased.

In Queensland, a step-child is not able to be the Administrator of their step-parent’s estate and will not be entitled to receive a share of their step-parent’s estate under the rules of intestacy.

Step-children are not recognised an ‘issue’ (i.e. a person’s lineal, blood-relative descendant)of the intestate, unless they were legally adopted.

In Queensland, even if the rules of intestacy are applied, an ‘eligible person’ can still bring a family provision claim if they believe they have been left without adequate provision from the estate.

Therefore step-children are still considered eligible to make a family provision claim against an intestate estate.

When in doubt – seek advice

If you are considering making a claim as a step-child of the deceased, or you are an appointed executor of an estate that needs to respond to a claim from a step-child, please feel free to contact us to discuss your options.

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Written by—

Duncan MacDougall

Call 07 3035 4077 to speak with our team now