This is the third in a series of four blogs on family provision claims in Queensland. The first in the series went through the steps involved in a family provision claim and the second looked at what the Court takes into account in a family provision claim when deciding what provision (if any) should be made.
This blog explores who is considered a “child” for the purposes of a family provision claim in Queensland.
For the purposes of Part 4 of the Succession Act 1981 (Qld) (“The Succession Act”) a “child” is defined as child, step-child or adopted child of a deceased person.
Parentage in Question:
Section 8 of the Status of Children Act 1978 (Qld) (“The Status of Children Act”) recognises a presumption of paternity if:
“(a) The father and mother of the child were married to each other, or in a registered relationship, at the time of the child’s conception or at some subsequent time;
(a) Paternity has been admitted (expressly or by implication) by or established against the father in his lifetime and, if that purpose is for the benefit of the father, paternity has been so admitted or established while the child was living; or
(b) A declaration of parentage has been made under section 10 (of the Status of Children Act) after the death of the father of the child.”
Section 10 of the Status of Children Act allows a person to apply to the Supreme Court for a declaration of parentage.
A “step-child” is defined in Section 40A of the Succession Act which states that a person is a step-child of the deceased person if:
(a) they are a child of a spouse of the deceased person; and
(c) a relationship of step-child and step-parent between the person and the deceased person did not stop.
The relationship of the step-child and step-parent stops on the following:
- The divorce of the deceased person and the step-child’s parent; or
- Termination of the civil partnership between the deceased person and the step-child’s parent; or
- The ending of the de facto relationship between the deceased person and the step-child’s parent.
The section goes on to confirm and clarify, that to remove any doubt it, is declared that the relationship of the step-child and step-parent does not stop merely because:
(a) the step-child’s parent died before the deceased person, if the deceased person’s marriage, civil partnership or de facto relationship between the deceased person and the parent subsisted when the parent died;
(b) the deceased person remarried, entered into a civil partnership or formed a de facto relationship after the death of the step-child’s parent, if the marriage, civil partnership or de facto relationship between the deceased person and the parent subsisted when the parent died.
If the deceased has legally adopted a child, the child will be considered the deceased’s child and eligible to bring a family provision claim against the estate.
However, in this instance, the adopted child will not be able to make a family provision claim against their birth parents’ estates.
As you can see from the above discussion, the question of who is considered a “child” under the Act and eligible to bring a family provision claim against an estate, is not a straight forward matter. Accordingly, it is imperative that legal advice is sought as soon as possible.
If you have any questions, or wish to discuss contesting or defending a Will, please contact Turner Freeman Lawyers’ Wills and Estates Team on 07 3025 9000. Jenna Hutchinson, Christie Belsham and Laura Hagan practise exclusively in Succession Law and would be happy to have a chat with you.