Is a Stepchild Eligible to Contest a Will in Queensland?
By Tim Ryan
Is a stepchild eligible to contest a Will in Queensland?
Eligibility criteria
In Queensland, a stepchild has the same rights as a biological or adopted child to contest a Will provided the stepparent and the child’s natural parent did not divorce before the death of the stepparent. To be a stepchild (and eligible to contest the Will of the stepparent), the child’s natural parent and stepparent don’t have to be married. It applies if they are in a civil partnership or de facto relationship as well. In 2017, the law was amended to confirm that the child of a deceased’s civil partner or de facto partner falls within the definition of a stepchild.
It is important to note that a stepchild remains eligible to contest the Will of the stepparent even when the stepparent remarries or enters into a de facto relationship or civil partnership after the death of the child’s natural parent provided that prior to the death of the child’s natural parent their relationship was not legally dissolved.
Time frames for a stepchild to contest
A stepchild who intends to contest a Will must do so within statutory time limits. The stepchild must notify the executor in writing of their intention to contest the Will within 6 months of the deceased’s death and they must file their Family Provision Application and commence proceedings within 9 months of the deceased’s death.
Factors considered in a Family Provision Application
While a stepchild in Queensland is eligible to contest a Will regardless of their age or dependence on the deceased, being successful in their claim for further provision from the deceased’s estate is a separate issue. The courts will look at a variety of factors when undertaking a Family Provision Application, such factors include:
- the financial and personal situation of the stepchild,
- the length, nature and closeness of the relationship between the stepchild and the deceased,
- the degree to which the stepchild was dependent on the deceased,
- competing claims (the claims and needs of other beneficiaries or applicants) and
- deceased’s reasons for excluding or minimising the stepchild’s share and
- the size of the deceased’s estate.
Superannuation death benefits and stepchildren
As to the eligibility of a stepchild to receive superannuation death benefits direct from the superannuation fund, a stepparent cannot nominate their stepchild as a beneficiary of their superannuation death benefits when the natural parent has predeceased or has divorced the stepparent. In such circumstances, the ATO has said that a stepchild is no longer entitled to receive death benefits directly from the superannuation fund unless the stepchild meets another definition as a dependant.
Dying without a Will and stepchildren
If a person dies without a Will, under Queensland’s Intestacy Laws, stepchildren are not automatically recognised as beneficiaries unless they qualify as a dependant in a Family Provision Application.