Who is a child, and can they make a claim against your estate?

child claim against estate de facto children natural step child estate litigation wills will lawyer contesting challenging australia queenslandIn Queensland, for the purposes of making an application for further provision from an estate, a child is eligible.

However, the definition of ‘child’ is three fold.

Effectively, a child of a deceased includes:

  • A natural child;
  • An adopted child; or
  • A step-child.

Who are natural children?

Under section 40 of the Succession Act 1981 (Qld), any child who is a natural child, is a child of the deceased. However, if a child was adopted out by their natural parent (the deceased), the adopted child will not be considered a child of the deceased under the Succession Act 1981 (Qld).

Therefore, a child who was adopted out by the deceased, is not eligible to make an application for further provision from the deceased’s estate.

Who are adopted children?

If a child was legally adopted by the deceased, then that child will be considered the deceased’s child under section 40 of the Succession Act 1981 (Qld).

It is important that a formal adoption took place.

Where the deceased adopted a child, that child is eligible to make an application for further provision from the deceased’s estate.

Who are step-children?

This is where it gets a bit tricky.

In order for a child to be considered a “step-child” under the Succession Act 1981 (Qld), the deceased must have either:

  • been married to the step-child’s natural parent at the time of the deceased’s death; or
  • in a de facto relationship with the step-child’s natural parent at the time of the deceased’s death, where they were living together as a couple on a genuine domestic basis for a continuous period of 2 years, ending on the deceased’s death.

The latter is difficult to conceptualise. As an example, let’s consider Fred and Jane who are living together as a couple on a genuine domestic basis for a continuous period of 2 years. Jane has one child, Bill, from a previous relationship. If Jane passes away whilst she has been living with Fred for a continuous period of 2 years, ending on her death, Bill will continue to be Fred’s step-child for the duration of Fred’s life.

Children who satisfy either of the above will be considered a step-child and will be eligible to make an application for further provision from their deceased step-parent’s estate.

If this blog touches on an issue which is present for you, I encourage you to seek legal advice. There are concepts such as ‘what is a genuine domestic relationship’ and ‘what do I need to show in order to make an application for further provision’ which are relevant to your situation, and need to be considered before taking any steps.

Please feel free to contact me should you have any questions.

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About the Author

Chloe is a lawyer practicing in business and corporate law and succession law (wills and estates). In the business and corporate area, Chloe focuses on corporate structuring, asset protection, corporate governance, smsf compliance and mergers and acquisitions. In the area of succession (wills and estates), Chloe focuses on estate planning, administration and litigation.
  • Laura Keith

    You have choose a nice topic and elaborated very well.I hope you would share more helpful topics in future.
    Will & Estate Law Adelaide

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